Senate Bill 1692

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    Florida Senate - 1998                                  SB 1692

    By Senator Ostalkiewicz





    12-1534-98

  1                      A bill to be entitled

  2         An act relating to the tax on sales, use, and

  3         other transactions (RAB); amending s. 212.02,

  4         F.S.; defining the terms "itinerant merchant"

  5         and "flea market operator, manager, lessor, or

  6         owner"; amending s. 212.07, F.S.; prescribing

  7         dealer liability for certain tax; prescribing

  8         tax liability for sales of race horses in

  9         claiming races; defining the terms "farmer" and

10         "livestock"; amending s. 212.08, F.S.;

11         exempting certain sales of racing dogs;

12         amending s. 212.09, F.S.; revising provisions

13         regulating credits for trade-ins; amending s.

14         212.17, F.S.; providing for reimbursement of

15         certain taxes paid by dealers; amending s.

16         212.18, F.S.; prescribing procedures for

17         remittance of tax on sales at flea markets;

18         providing an effective date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Subsections (27) and (28) are added to

23  section 212.02, Florida Statutes, to read:

24         212.02  Definitions.--The following terms and phrases

25  when used in this chapter have the meanings ascribed to them

26  in this section, except where the context clearly indicates a

27  different meaning:

28         (27)  "Itinerant merchant" means any person, as defined

29  in this chapter, who solicits, engages in, transacts, or

30  offers for sale any new or used merchandise either in one

31  location or while traveling from place to place in this state,

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  1  who does not intend to become or who does not become a

  2  permanent merchant at any one location, and who for the

  3  purpose of transacting such business rents, hires, leases,

  4  occupies, or uses any building, structure, lot, tract, motor

  5  vehicle, sample case, display case, or any portion thereof,

  6  for the exhibition and sale of goods, wares, or merchandise.

  7  Flea market vendors are included within this definition.

  8  However, an itinerant merchant does not mean any person who

  9  occasionally sells tangible personal property from his place

10  of residence, if the person does not hold himself out as

11  engaged in business and if the person does not conduct more

12  than two sales events per calendar year.

13         (28)  A "flea market operator, manager, lessor, or

14  owner" means any person who provides space to flea market

15  vendors.

16         Section 2.  Paragraph (c) is added to subsection (1) of

17  section 212.07, Florida Statutes, and subsections (5) and (8)

18  of that section are amended, to read:

19         212.07  Sales, storage, use tax; tax added to purchase

20  price; dealer not to absorb; liability of purchasers who

21  cannot prove payment of the tax; penalties; general

22  exemptions.--

23         (1)

24         (c)  Unless the purchaser of tangible personal property

25  that is incorporated into tangible personal property

26  manufactured, produced, compounded, processed, or fabricated

27  for one's own use and subject to the tax imposed under s.

28  212.06(1)(b) or is purchased for export under s.

29  212.06(5)(a)1. extends a certificate in compliance with the

30  rules of the department, the dealer shall himself or herself

31  be liable for and pay the tax.

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  1         (5)(a)  The gross proceeds derived from the sale in

  2  this state of livestock, poultry, and other farm products

  3  direct from the farm are exempted from the tax levied by this

  4  chapter provided such sales are made directly by the

  5  producers.  The producers shall be entitled to such exemptions

  6  although the livestock so sold in this state may have been

  7  registered with a breeders' or registry association prior to

  8  the sale and although the sale takes place at a livestock show

  9  or race meeting, so long as the sale is made by the original

10  producer and within this state.  When sales of livestock,

11  poultry, or other farm products are made to consumers by any

12  person, as defined herein, other than a producer, they are not

13  exempt from the tax imposed by this chapter. The foregoing

14  exemption does not apply to ornamental nursery stock offered

15  for retail sale by the producer.

16         (b)  Sales of race horses at claiming races are

17  taxable; however, if sufficient information is provided by

18  race track officials to properly administer the tax, sales tax

19  is due only on the maximum single amount for which a horse is

20  sold at all races at which it is claimed during an entire

21  racing season.

22         (8)(a)  The term "agricultural commodity," for the

23  purposes of this section hereof, means horticultural, poultry

24  and farm products, and livestock and livestock products.

25         (b)  The term "farmer," for the purposes of this

26  section, means a person directly engaged in the business of

27  producing crops, livestock, or other farm products. The term

28  includes, but is not limited to, horse breeders, nurserymen,

29  dairymen, poultry men, cattle ranchers, apiarists, and persons

30  raising fish for human consumption. The term does not include

31  persons engaged in the business of breeding and raising

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  1  animals for use as pets, including, but not limited to,

  2  tropical birds and fish, or persons engaged in the business of

  3  raising or displaying exotic animals.

  4         (c)  The term "livestock," for the purposes of this

  5  section, means any animal raised for commercial purposes other

  6  than for sale or use in a display or show or for sale or use

  7  as a pet.

  8         Section 3.  Paragraph (qq) is added to subsection (7)

  9  of section 212.08, Florida Statutes, to read:

10         212.08  Sales, rental, use, consumption, distribution,

11  and storage tax; specified exemptions.--The sale at retail,

12  the rental, the use, the consumption, the distribution, and

13  the storage to be used or consumed in this state of the

14  following are hereby specifically exempt from the tax imposed

15  by this chapter.

16         (7)  MISCELLANEOUS EXEMPTIONS.--

17         (qq)  Racing dogs.--The sale of a racing dog by its

18  owner is exempt if the owner is also the breeder of the

19  animal.

20         Section 4.  Section 212.09, Florida Statutes, is

21  amended to read:

22         212.09  Trade-ins deducted.--

23         (1)  Where used articles, accepted and intended for

24  resale, are taken in trade, or a series of trades, as a credit

25  or part payment on the sale of new articles, the tax levied by

26  this chapter shall be paid on the sales price of the new

27  article, less the credit for the used article taken in trade.

28         (2)  Where used articles, accepted and intended for

29  resale, are taken in trade, or a series of trades, as a credit

30  or part payment on the sale of used articles, the tax levied

31

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  1  by this chapter shall be paid on the sales price of the used

  2  article less the credit for the used article taken in trade.

  3         (3)  A person who is not registered with the department

  4  as a seller of aircraft, boats, mobile homes, or vehicles who

  5  is selling an aircraft, boat, mobile home, or vehicle and who

  6  takes in trade an item other than an aircraft, boat, mobile

  7  home, or vehicle may not use the item as a credit against

  8  sales price.

  9         Section 5.  Section 212.17, Florida Statutes, is

10  amended to read:

11         212.17  Credits for returned goods, sold goods acquired

12  for dealer's own use, rentals, or admissions; additional

13  powers of department.--

14         (1)(a)  In the event purchases are returned to a the

15  dealer by the purchaser or consumer after the tax imposed by

16  this chapter has been collected from or charged to the account

17  of the consumer or user, the dealer shall be entitled to

18  reimbursement of the amount of tax collected or charged by the

19  dealer, in the manner prescribed by the department.; and in

20  case

21         (b)  A registered dealer that purchases property for

22  the dealer's own use, pays tax on acquisition, and sells the

23  property subsequent to acquisition without ever having used

24  the property is entitled to reimbursement, in the manner

25  prescribed by the department, of the amount of tax paid on the

26  property's acquisition.

27         (c)  If the tax has not been remitted by a the dealer

28  to the department, the dealer may deduct the same in

29  submitting his or her return upon receipt of a signed

30  statement of the dealer as to the gross amount of such refunds

31  during the period covered by said signed statement, which

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  1  period shall not be longer than 90 days.  The department shall

  2  issue to the dealer an official credit memorandum equal to the

  3  net amount remitted by the dealer for such tax collected or

  4  paid.  Such memorandum shall be accepted by the department at

  5  full face value from the dealer to whom it is issued, in the

  6  remittance for subsequent taxes accrued under the provisions

  7  of this chapter. If; provided, in cases where a dealer has

  8  retired from business and has filed a final return, a refund

  9  of tax may be made if it can be established to the

10  satisfaction of the department that the tax was not due.

11         (2)  A dealer who has paid the tax imposed by this

12  chapter on tangible personal property sold under a retained

13  title, conditional sale, or similar contract, or under a

14  contract wherein the dealer retains a security interest in the

15  property pursuant to chapter 679, may take credit or obtain a

16  refund for the tax paid by the dealer on the unpaid balance

17  due him or her when he or she repossesses (with or without

18  judicial process) the property within 12 months following the

19  month in which the property was repossessed. When such

20  repossessed property is resold, the sale is subject in all

21  respects to the tax imposed by this chapter.

22         (3)  A dealer who has paid the tax imposed by this

23  chapter on tangible personal property or services may take a

24  credit or obtain a refund for any tax paid by the dealer on

25  the unpaid balance due on worthless accounts within 12 months

26  following the month in which the bad debt has been charged off

27  for federal income tax purposes.  If any accounts so charged

28  off for which a credit or refund has been obtained are

29  thereafter in whole or in part paid to the dealer, the amount

30  so paid shall be included in the first return filed after such

31  collection and the tax paid accordingly.

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  1         (4)  The department shall design, prepare, print and

  2  furnish to all dealers, or make available to said dealers, all

  3  necessary forms for filing returns and instructions to ensure

  4  a full collection from dealers and an accounting for the taxes

  5  due, but failure of any dealer to secure such forms shall not

  6  relieve such dealer from the payment of said tax at the time

  7  and in the manner herein provided.

  8         (5)  The department and its assistants are hereby

  9  authorized and empowered to administer the oath for the

10  purpose of enforcing and administering the provisions of this

11  chapter.

12         (6)  The department shall have the power to make,

13  prescribe and publish reasonable rules and regulations not

14  inconsistent with this chapter, or the other laws, or the

15  constitution of this state, or the United States, for the

16  enforcement of the provisions of this chapter and the

17  collection of revenue hereunder, and such rules and

18  regulations shall when enforced be deemed to be reasonable and

19  just.

20         (7)  The department, where admissions, license fees, or

21  rental payments or payments for services are made and

22  thereafter returned to the payers after the taxes thereon have

23  been paid, shall return or credit the taxpayer for taxes so

24  paid on the moneys returned in the same manner as is provided

25  for returns or credits of taxes where purchases or tangible

26  personal property are returnable to a dealer.

27         Section 6.  Subsection (3) of section 212.18, Florida

28  Statutes, is amended, and subsection (6) is added to that

29  section, to read:

30         212.18  Administration of law; registration of dealers;

31  rules.--

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  1         (3)(a)  Every person desiring to engage in or conduct

  2  business in this state as a dealer, as defined in this

  3  chapter, or to lease, rent, or let or grant licenses in living

  4  quarters or sleeping or housekeeping accommodations in hotels,

  5  apartment houses, roominghouses, or tourist or trailer camps

  6  that are subject to tax under s. 212.03, or to lease, rent, or

  7  let or grant licenses in real property, as defined in this

  8  chapter, and every person who sells or receives anything of

  9  value by way of admissions, must file with the department an

10  application for a certificate of registration for each place

11  of business, showing the names of the persons who have

12  interests in such business and their residences, the address

13  of the business, and such other data as the department may

14  reasonably require. However, itinerant merchants selling

15  exclusively at flea markets may in lieu of registration remit

16  tax on their sales to the flea market operator in the manner

17  provided for in subsection (6) provided they fall below the

18  threshold requirement for individual registration specified in

19  such subsection. The department may appoint the county tax

20  collector as the department's agent to accept applications for

21  registrations. The application must be made to the department

22  before the person, firm, copartnership, or corporation may

23  engage in such business, and it must be accompanied by a

24  registration fee of $5. However, a registration fee is not

25  required to accompany an application to engage in or conduct

26  business to make mail order sales. The department, upon

27  receipt of such application, will grant to the applicant a

28  separate certificate of registration for each place of

29  business, which certificate may be canceled by the department

30  or its designated assistants for any failure by the

31  certificateholder to comply with any of the provisions of this

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  1  chapter. The certificate is not assignable and is valid only

  2  for the person, firm, copartnership, or corporation to which

  3  issued. The certificate must be placed in a conspicuous place

  4  in the business or businesses for which it is issued and must

  5  be displayed at all times. Except as provided in this

  6  paragraph, no person shall engage in business as a dealer or

  7  in leasing, renting, or letting of or granting licenses in

  8  living quarters or sleeping or housekeeping accommodations in

  9  hotels, apartment houses, roominghouses, tourist or trailer

10  camps, or real property as hereinbefore defined, nor shall any

11  person sell or receive anything of value by way of admissions,

12  without first having obtained such a certificate or after such

13  certificate has been canceled; no person shall receive any

14  license from any authority within the state to engage in any

15  such business without first having obtained such a certificate

16  or after such certificate has been canceled. The engaging in

17  the business of selling or leasing tangible personal property

18  or services or as a dealer, as defined in this chapter, or the

19  engaging in leasing, renting, or letting of or granting

20  licenses in living quarters or sleeping or housekeeping

21  accommodations in hotels, apartment houses, roominghouses, or

22  tourist or trailer camps that are taxable under this chapter,

23  or real property, or the engaging in the business of selling

24  or receiving anything of value by way of admissions, without

25  such certificate first being obtained or after such

26  certificate has been canceled by the department, is

27  prohibited. The failure or refusal of any person, firm,

28  copartnership, or corporation to so qualify when required

29  hereunder is a misdemeanor of the first degree, punishable as

30  provided in s. 775.082 or s. 775.083, or subject to injunctive

31  proceedings as provided by law. Such failure or refusal also

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  1  subjects the offender to a $100 initial registration fee in

  2  lieu of the $5 registration fee authorized in this paragraph.

  3  However, the department may waive the increase in the

  4  registration fee if it is determined by the department that

  5  the failure to register was due to reasonable cause and not to

  6  willful negligence, willful neglect, or fraud.

  7         (b)  The department may revoke any dealer's certificate

  8  of registration when the dealer fails to comply with this

  9  chapter. Prior to revocation of a dealer's certificate of

10  registration, the department must schedule an informal

11  conference at which the dealer may present evidence regarding

12  the department's intended revocation or enter into a

13  compliance agreement with the department. The department must

14  notify the dealer of its intended action and the time, place,

15  and date of the scheduled informal conference by written

16  notification sent by U.S. mail to the dealer's last known

17  address of record furnished by the dealer on a form prescribed

18  by the department. The dealer is required to attend the

19  informal conference and present evidence refuting the

20  department's intended revocation or enter into a compliance

21  agreement with the department which resolves the dealer's

22  failure to comply with this chapter. The department shall

23  issue an administrative complaint under s. 120.60 if the

24  dealer fails to attend the department's informal conference,

25  fails to enter into a compliance agreement with the department

26  resolving the dealer's noncompliance with this chapter, or

27  fails to comply with the executed compliance agreement.

28         (c)(b)  As used in this paragraph, the term "exhibitor"

29  means a person who enters into an agreement authorizing the

30  display of tangible personal property or services at a

31

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  1  convention or a trade show.  The following provisions apply to

  2  the registration of exhibitors as dealers under this chapter:

  3         1.  An exhibitor whose agreement prohibits the sale of

  4  tangible personal property or services subject to the tax

  5  imposed in this chapter is not required to register as a

  6  dealer.

  7         2.  An exhibitor whose agreement provides for the sale

  8  at wholesale only of tangible personal property or services

  9  subject to the tax imposed in this chapter must obtain a

10  resale certificate from the purchasing dealer but is not

11  required to register as a dealer.

12         3.  An exhibitor whose agreement authorizes the retail

13  sale of tangible personal property or services subject to the

14  tax imposed in this chapter must register as a dealer and

15  collect the tax imposed under this chapter on such sales.

16         4.  Any exhibitor who makes a mail order sale pursuant

17  to s. 212.0596 must register as a dealer.

18

19  Any person who conducts a convention or a trade show must make

20  their exhibitor's agreements available to the department for

21  inspection and copying.

22         (6)(a)  Notwithstanding the requirements of subsection

23  (3), a flea market operator, manager, lessor, or owner shall:

24         1.  Register with the Department of Revenue. Only one

25  tax number is required for each flea market business location.

26  The flea market operator, manager, lessor, or owner shall

27  remit the tax collected on the space rentals and the tax

28  collected from unregistered flea market vendors under this

29  number monthly, unless otherwise notified.

30         2.  Collect tax on all space rentals from flea market

31  vendors and remit it to the department. The amount of tax

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  1  shall be separately stated from the rental charge and must be

  2  shown as Florida tax on any rental agreement, invoice, or

  3  other tangible evidence that authorizes the use of the rental

  4  space.

  5         3.a.  Obtain from each unregistered flea market vendor

  6  a signed statement declaring that the unregistered flea market

  7  vendor agrees to collect the applicable tax on his sales and

  8  remit it to the flea market operator, manager, lessor, or

  9  owner at the close of each business day. The statement shall

10  include both the permanent business address, if applicable,

11  and the residence address of the flea market vendor. Records

12  of taxes collected and remitted shall be retained for the

13  period specified in s. 213.35. The flea market operator,

14  manager, lessor, or owner is not responsible for the failure

15  of the flea market vendor to properly collect, remit, and

16  account for the sales tax.

17         b.  Provide each unregistered flea market vendor with a

18  sign no smaller than 8" x 10" with lettering at least 1" high,

19  which must be displayed in a conspicuous place at the stall or

20  other place of sale by the vendor and which reads as follows:

21         "Name of vendor" is duly authorized to collect

22         Florida sales tax for remittance by the flea

23         market operator to the Department of Revenue.

24         c.  Furnish unregistered flea market vendors with tax

25  envelopes so that the unregistered vendor can record the daily

26  sales transactions and remit the taxes collected and due to

27  the flea market operator, manager, lessor, or owner. The

28  department may adopt necessary rules to prescribe the format

29  for the tax envelopes.

30         4.a.  Obtain from each registered flea market vendor a

31  photocopy of the vendor's Certificate of Registration or, in

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  1  lieu thereof, a statement from the registered vendor attesting

  2  that the vendor has a valid Certificate of Registration. The

  3  statement should contain the registration number and the

  4  effective date the number was issued and should be signed by

  5  the vendor.

  6         b.  Provide each registered flea market vendor with a

  7  sign no smaller than 8" x 10" with lettering at least 1" high,

  8  which must be displayed in a conspicuous place at the stall or

  9  other place of sale by the vendor and which reads as follows:

10         "Name of vendor" is duly authorized to collect

11         and remit Florida sales tax to the Department

12         of Revenue.

13         (b)  A flea market operator, manager, lessor, or owner

14  may refuse to lease space to any flea market vendor who fails

15  to provide the documents required under subparagraph (a)3. or

16  subparagraph 4. These documents shall be retained for a period

17  of 5 years.

18         (c)  A flea market operator, manager, lessor, or owner

19  is required to remit the sales tax collected from each

20  unregistered flea market vendor when the vendor has collected

21  and remitted the tax to the flea market operator, manager,

22  lessor, or owner at the same time and on the same tax return

23  as required for the space rentals. Flea market vendors with an

24  estimated monthly sales tax liability of $50 or greater must

25  register with the department and report their own taxes. Flea

26  market vendors with an estimated monthly sales tax liability

27  of less than $50 must elect to either remit the tax to the

28  flea market operator, manager, lessor, or owner or to

29  register, report, and remit their own taxes. Taxes collected

30  become state funds at the moment of collection. Any person

31  who, with intent to unlawfully deprive or defraud the state of

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  1  its moneys or the use or benefit thereof, fails to remit taxes

  2  collected pursuant to chapter 212 is guilty of theft of state

  3  funds, punishable as provided in s. 775.082, s. 775.083, or s.

  4  775.084.

  5         (d)  A flea market operator, manager, lessor, or owner

  6  shall furnish and post signs at each entrance of the flea

  7  market and in other conspicuous places throughout the flea

  8  market area. Such signs must state that "Florida Law Requires

  9  Sales Tax To Be Collected On All Taxable Sales." The signs

10  shall have lettering at least 3 inches high.

11         Section 7.  This act shall take effect July 1, 1998.

12

13            *****************************************

14                          SENATE SUMMARY

15    Defines the terms "itinerant merchant," "flea market
      operator, manager, lessor, or owner," "farmer," and
16    "livestock." Provides that a dealer is personally liable
      for tax if he or she has not extended a certificate in
17    compliance with Department of Revenue rules, unless the
      purchase meets specific criteria. Provides that sales of
18    race horses at claiming races are taxable. Exempts sales
      of racing dogs from taxation when the owner is also the
19    breeder. Provides that persons not registered as dealers
      in aircraft, boats, mobile homes, or vehicles may not use
20    a trade-in of other items as a credit against the sales
      price when selling an aircraft, boat, mobile home, or
21    vehicle. Authorizes reimbursement of sales taxes paid on
      items bought for a dealer's own use but subsequently
22    resold without use. Prescribes conditions under which
      persons selling at flea markets must remit the taxes they
23    collect and conditions under which they may remit through
      the flea market operator, manager, lessor, or owner.
24

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