Senate Bill 0322c1

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    Florida Senate - 1998                            CS for SB 322

    By the Committee on Commerce and Economic Opportunities and
    Senator Ostalkiewicz




    310-1753-98

  1                      A bill to be entitled

  2         An act relating to taxation; amending s.

  3         95.091, F.S.; revising certain statutes of

  4         limitation; eliminating the tolling of the

  5         statute of limitations for specified causes;

  6         prescribing circumstances for the tolling of

  7         the statute of limitations as a result of

  8         administrative or judicial proceedings;

  9         limiting the period for which additional

10         penalties and interest may be imposed;

11         requiring a final order to be issued within a

12         certain period after an administrative appeal

13         is filed; requiring reasonable compensation to

14         a taxpayer for resubmission of information or

15         documents; requiring the application of tax

16         overpayments to tax underpayments prior to

17         imposition of a penalty; amending s. 213.015,

18         F.S.; providing additional rights to taxpayers

19         regarding interest paid on delinquent taxes and

20         interest received on delinquent refunds,

21         freedom from being reaudited, rights of appeal,

22         rights to obtain reimbursement of certain fees

23         on favorable appeals, the right to compensation

24         for providing certain information or documents

25         to the department, freedom from commissioned

26         auditors, statutes of limitation, the time

27         permitted to file for refunds, and the right to

28         apply overpayments to the payment of other

29         taxes due; creating s. 213.235, F.S.; providing

30         for determination of the annual rate of

31         interest applicable to certain tax payment

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    Florida Senate - 1998                            CS for SB 322
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  1         deficiencies; creating s. 213.255, F.S.;

  2         providing for payment of interest on

  3         overpayments of taxes, payment of taxes not

  4         due, or taxes paid in error with respect to

  5         taxes administered by the Department of Revenue

  6         if refund is not made within a specified

  7         period; providing requirements for refund

  8         applications; requiring a bond or other

  9         security under certain conditions; providing

10         for application; amending s. 213.34, F.S.;

11         prescribing conditions under which the

12         Department of Revenue may not re-audit a

13         taxpayer; providing conditions under which the

14         Department of Revenue may be liable for

15         accountant's and attorney's fees incurred by a

16         taxpayer as the result of an audit; amending s.

17         215.26, F.S.; revising the period during which

18         a taxpayer must file a refund application;

19         providing an effective date.

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

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23         Section 1.  Subsections (3) and (4) of section 95.091,

24  Florida Statutes, are amended to read:

25         95.091  Limitation on actions to collect taxes.--

26         (3)(a)1.  With the exception of taxes levied under

27  chapter 198 and tax adjustments made pursuant to s. 220.23,

28  the Department of Revenue may determine and assess the amount

29  of any tax, penalty, or interest due under any tax enumerated

30  in s. 72.011 which it has authority to administer and the

31  Department of Business and Professional Regulation may

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    Florida Senate - 1998                            CS for SB 322
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  1  determine and assess the amount of any tax, penalty, or

  2  interest due under any tax enumerated in s. 72.011 which it

  3  has authority to administer:

  4         a.  For taxes due before July 1, 1998, within 5 years

  5  after the date the tax is due, any return with respect to the

  6  tax is due, or such return is filed, whichever occurs later;

  7  for taxes due before July 1, 1998, and for which the

  8  department has not initiated an audit with respect to such

  9  taxes by July 1, 1998, within 2 years after the date the tax

10  is due, any return with respect to the tax is due, or such

11  return is filed, whichever occurs later; and for taxes due on

12  or after July 1, 1998, within 2 years after the date the tax

13  is due, any return with respect to the tax is due, or such

14  return is filed, whichever occurs later;

15         b.  For taxes due before July 1, 1998, within 6 years

16  after the date the taxpayer either makes a substantial

17  underpayment of tax, or files a substantially incorrect

18  return;

19         c.  At any time while the right to a refund or credit

20  of the tax is available to the taxpayer;

21         d.  For taxes due before July 1, 1998, at any time

22  after the taxpayer has filed a grossly false return;

23         e.d.  At any time after the taxpayer has failed to make

24  any required payment of the tax, has failed to file a required

25  return, or has filed a grossly false or fraudulent return,

26  except that for taxes due on or after July 1, 1998, the

27  limitation prescribed in sub-subparagraph a. applies if the

28  taxpayer has disclosed in writing the tax liability to the

29  department before the department has given the taxpayer notice

30  of that liability; or

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    Florida Senate - 1998                            CS for SB 322
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  1         f.e.  In any case in which there has been a refund of

  2  tax erroneously made for any reason:

  3         (I)  For taxes due before July 1, 1998, within 5 years

  4  after making such refund; and

  5         (II)  For taxes due on or after July 1, 1998, within 2

  6  years after making such refund,

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  8  or at any time after making such refund if it appears that any

  9  part of the refund was induced by fraud or the

10  misrepresentation of a material fact.

11         2.  For the purpose of this paragraph, a tax return

12  filed before the last day prescribed by law, including any

13  extension thereof, shall be deemed to have been filed on such

14  last day, and payments made prior to the last day prescribed

15  by law shall be deemed to have been paid on such last day.

16         (b)  The limitations in this subsection shall be tolled

17  for a period of 2 years with respect to taxes due before July

18  1, 1998, if the Department of Revenue has issued a notice of

19  intent to conduct an audit or investigation of the taxpayer's

20  account within the applicable period of time as specified in

21  this subsection.  The department shall commence an audit

22  within 120 days after it issues a notice of intent to conduct

23  an audit, unless the taxpayer requests a delay.  If the

24  taxpayer does not request a delay and the department does not

25  begin the audit within 120 days after issuing the notice, the

26  tolling period shall terminate.

27         (4)  If administrative or judicial proceedings for

28  review of the tax assessment or collection are initiated by a

29  taxpayer begun within the a period of limitation prescribed in

30  this section, the running of the period shall be tolled during

31  the pendency of the proceeding. Administrative proceedings

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    Florida Senate - 1998                            CS for SB 322
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  1  shall include taxpayer protest proceedings initiated under s.

  2  213.21 and department rules. No additional interest or penalty

  3  may be imposed for any tax liability for any period occurring

  4  after the expiration of the time limitation prescribed in this

  5  section except for the period during which the liability is

  6  the subject of a proceeding under chapter 72.

  7         Section 2.  Notwithstanding any other provision of law:

  8         (1)  A taxpayer may appeal all tax assessments and

  9  penalties to an administrative hearing officer prior to paying

10  the contested amount. The department must issue a final order

11  within 90 days after the appeal is filed.

12         (2)  If a taxpayer provides information or documents to

13  the Department of Revenue and the department subsequently

14  requests the taxpayer to provide the same information or

15  documents, the department must pay reasonable compensation to

16  the taxpayer for providing such information or documents.

17         (3)  If a taxpayer overpays a tax liability and

18  underpays another tax liability and notifies the Department of

19  Revenue of the overpayment, the department must apply the

20  overpayment to the underpaid tax liability before imposing a

21  penalty against the taxpayer for the underpayment.

22         Section 3.  Subsections (8), (12), and (14) of section

23  213.015, Florida Statutes, are amended and subsections (16),

24  (17), (18), and (19) are added to that section, to read:

25         213.015  Taxpayer rights.--There is created a Florida

26  Taxpayer's Bill of Rights to guarantee that the rights,

27  privacy, and property of Florida taxpayers are adequately

28  safeguarded and protected during tax assessment, collection,

29  and enforcement processes administered under the revenue laws

30  of this state.  The Taxpayer's Bill of Rights compiles, in one

31  document, brief but comprehensive statements which explain, in

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    Florida Senate - 1998                            CS for SB 322
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  1  simple, nontechnical terms, the rights and obligations of the

  2  Department of Revenue and taxpayers.  The rights afforded

  3  taxpayers to assure that their privacy and property are

  4  safeguarded and protected during tax assessment and collection

  5  are available only insofar as they are implemented in other

  6  parts of the Florida Statutes or rules of the Department of

  7  Revenue. The rights so guaranteed Florida taxpayers in the

  8  Florida Statutes and the departmental rules are:

  9         (8)  The right to seek review, through formal or

10  informal proceedings, of any adverse decisions relating to

11  determinations in the audit or collections processes and the

12  right to seek a reasonable administrative stay of enforcement

13  actions while the taxpayer pursues other administrative

14  remedies available under Florida law (see ss. 120.80(14)(b),

15  213.21(1), 220.717, and 220.719(2)). Such remedies include the

16  right to appeal all assessments and penalties to an

17  administrative hearing officer prior to paying the contested

18  amount and the right to have a final order issued within 90

19  days after the appeal is filed.

20         (12)  The right to procedures that which assure that

21  the individual employees of the department or outside auditors

22  retained by the department are not paid, evaluated, or

23  promoted on the basis of the amount of assessments or

24  collections from taxpayers (see ss. 213.30(2) and 213.28(3) s.

25  213.30(2)).

26         (14)(a)  The right of the taxpayer or the department,

27  as the prevailing party in a judicial or administrative action

28  brought or maintained without the support of justiciable

29  issues of fact or law, to recover all costs of the

30  administrative or judicial action, including reasonable

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    Florida Senate - 1998                            CS for SB 322
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  1  attorney's fees, and of the department and taxpayer to settle

  2  such claims through negotiations (see ss. 57.105 and 57.111).

  3         (b)  The right of a taxpayer to recover reasonable

  4  accountant's fees and attorney's fees incurred in an audit, if

  5  the taxpayer appeals a department ruling and the appeal

  6  results in a finding in favor of the taxpayer (see

  7  s.213.34(6)).

  8         (16)(a)  The right to receive interest at a market rate

  9  on a refund that is not paid within 90 days after filing a

10  completed application for refund of overpayments, payment of

11  taxes not due, or taxes paid in error (see ss. 213.255 and

12  220.723).

13         (b)  The right to be charged interest on delinquent

14  taxes at a market rate (see ss. 213.235, 220.807, and

15  220.809).

16         (17)  The right to have returns audited within 2 years

17  after they are filed; and the right to file for a refund

18  within 3 years after the tax was paid and to not be reaudited

19  for the same time period, unless fraud is suspected (see ss.

20  95.091, 213.34(5), and 215.26).

21         (18)  The right to reasonable compensation for the

22  resubmission of information or documents to the department.

23         (19)  The right to have any overpayments of taxes

24  applied to separate underpayments of other tax liabilities

25  before penalties are imposed for the underpayments.

26         Section 4.  Section 213.235, Florida Statutes, is

27  created to read:

28         213.235  Determination of interest on deficiencies.--

29         (1)  Notwithstanding any other provision of law, the

30  annual rate of interest applicable to tax payment deficiencies

31  that arise on or after July 1, 1998, shall be the adjusted

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    Florida Senate - 1998                            CS for SB 322
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  1  rate established by the executive director of the department

  2  under subsection (2), unless a lower rate for the particular

  3  tax is specifically provided for in law, in which case the

  4  lower rate shall apply.  This annual rate of interest is

  5  applicable to all taxes enumerated in s. 213.05.

  6         (2)  If the adjusted prime rate charged by banks,

  7  rounded to the nearest full percent, during either:

  8         (a)  The 6-month period ending on September 30 of any

  9  calendar year; or

10         (b)  The 6-month period ending on March 31 of any

11  calendar year,

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13  differs from the interest rate in effect on such date, the

14  executive director of the department shall, within 20 days,

15  establish an adjusted rate of interest equal to such adjusted

16  prime rate.

17         (3)  An adjusted rate of interest established under

18  this section shall become effective:

19         (a)  On January 1 of the succeeding year, if based upon

20  the adjusted prime rate for the 6-month period ending on

21  September 30; or

22         (b)  On July 1 of the same calendar year, if based upon

23  the adjusted prime rate for the 6-month period ending on March

24  31.

25         (4)  For the purposes of this section, "adjusted prime

26  rate charged by banks" means the average predominant prime

27  rate quoted by commercial banks to large businesses, as

28  determined by the Board of Governors of the Federal Reserve

29  System.

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  1         (5)  Once established, an adjusted rate of interest

  2  shall remain in effect until an adjustment is made under

  3  subsection (2).

  4         Section 5.  Section 213.255, Florida Statutes, is

  5  created to read:

  6         213.255  Interest.--Interest shall be paid on

  7  overpayments of taxes, payment of taxes not due, or taxes paid

  8  in error, subject to the following conditions:

  9         (1)  A refund application must be filed with the

10  department within the time specified by s. 215.26.

11         (2)  A refund application shall not be processed until

12  it is determined complete.  A refund application is complete

13  if it is filed on a permitted form and contains:

14         (a)  The taxpayer's name, address, identifying number,

15  and signature.

16         (b)  Sufficient information, whether on the application

17  or attachments, to permit mathematical verification of the

18  amount of the refund.

19         (c)  The amount claimed.

20         (d)  The specific grounds upon which the refund is

21  claimed.

22         (e)  The taxable years or periods involved.

23         (f)  A completed audit, if an audit is required by the

24  department.

25         (3)  If the refund application is not complete, the

26  department shall return the application to the taxpayer with

27  instructions to include any documents needed to complete the

28  application.

29         (4)  Interest shall not commence until 90 days after a

30  complete refund application has been filed and the amount of

31  overpayment has not been refunded to the taxpayer or applied

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  1  as a credit to the taxpayer's account.  If the department and

  2  the taxpayer mutually agree that an audit of the claim is

  3  necessary, interest shall not commence until the audit of the

  4  claim is final.

  5         (5)  If a tax is adjudicated unconstitutional and

  6  refunds are ordered by the court, interest shall not commence

  7  on complete applications until 90 days after the adjudication

  8  becomes final and unappealable or 90 days after a complete

  9  application has been filed, whichever is later.

10         (6)  Interest shall be paid until a date determined by

11  the department which shall be no more than 7 days prior to the

12  date of the issuance of the refund warrant by the Comptroller.

13         (7)  No interest shall be paid if the department has

14  reasonable cause to believe that it could not recover the

15  amount of any refund paid in error from the person claiming

16  the refund, unless such person files a cash bond or a surety

17  bond in the amount of the refund claimed or such person makes

18  other security arrangements satisfactory to the department.

19  The cash or surety bond shall be endorsed by a surety company

20  authorized to do business in this state and shall be

21  conditioned upon payment in full of the amount of any refund

22  paid in error for any reason.  The department shall provide a

23  written notice of its determination that a cash or surety bond

24  is required, in which event interest shall not commence until

25  the person filing the claim satisfies this requirement.

26         (8)  The rate of interest shall be the adjusted rate

27  established pursuant to s. 213.235.  This annual rate of

28  interest shall be applied to all refunds of taxes administered

29  by the department except for corporate income taxes and

30  emergency excise taxes governed by ss. 220.721 and 220.723.

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  1         (9)  This section shall apply to eligible refunds based

  2  on tax payments made on or after July 1, 1998.

  3         Section 6.  Subsections (5) and (6) are added to

  4  section 213.34, Florida Statutes, to read:

  5         213.34  Authority to audit.--

  6         (5)  If a return is audited, the department may not

  7  reaudit the taxpayer for the same time period and the same

  8  tax, unless fraud is suspected.

  9         (6)  If a taxpayer appeals the results of an audit and

10  the appeal results in a finding in favor of the taxpayer, the

11  department is liable for reasonable accountant's fees and

12  attorney's fees incurred by the taxpayer as a result of the

13  audit.

14         Section 7.  Subsection (2) of section 215.26, Florida

15  Statutes, is amended to read:

16         215.26  Repayment of funds paid into State Treasury

17  through error.--

18         (2)  Application for refunds as provided by this

19  section must be filed with the Comptroller, except as

20  otherwise provided in this subsection, within 3 years after

21  the right to the refund has accrued or else the right is

22  barred. Except as provided in chapter 198 and s. 220.23, an

23  application for a refund of a tax enumerated in s. 72.011,

24  which tax was paid after September 30, 1994, and before July

25  1, 1998, must be filed with the Comptroller within 5 years

26  after the date the tax is paid. Except as provided in chapter

27  198 and s. 220.23, an application for a refund of a tax

28  enumerated in s. 72.011, which tax was paid on or after July

29  1, 1998, must be filed with the Comptroller within 3 years

30  after the date the tax is paid. The Comptroller may delegate

31  the authority to accept an application for refund to any state

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  1  agency, or the judicial branch, vested by law with the

  2  responsibility for the collection of any tax, license, or

  3  account due. The application for refund must be on a form

  4  approved by the Comptroller and must be supplemented with

  5  additional proof the Comptroller deems necessary to establish

  6  the claim; provided, the claim is not otherwise barred under

  7  the laws of this state. Upon receipt of an application for

  8  refund, the judicial branch or the state agency to which the

  9  funds were paid shall make a determination of the amount due.

10  If an application for refund is denied, in whole or in part,

11  the judicial branch or such state agency shall notify the

12  applicant stating the reasons therefor. Upon approval of an

13  application for refund, the judicial branch or such state

14  agency shall furnish the Comptroller with a properly executed

15  voucher authorizing payment.

16         Section 8.  This act shall take effect July 1, 1998.

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    Florida Senate - 1998                            CS for SB 322
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 322

  3

  4  The committee substitute differs from Senate Bill 322
    principally by:
  5
    --  Providing that a two-year statute of limitations on
  6       assessment of taxes, penalty, or interest applies to
         taxes due on or after July 1, 1998, as well as to taxes
  7       due before July 1, 1998, if the Department of Revenue has
         not initiated an audit by that date; and providing that
  8       existing statutes of limitation otherwise apply to taxes
         due before July 1, 1998;
  9
    --  Providing that, for taxes due on or after July 1, 1998, if
10       a taxpayer files a fraudulent return but discloses the
         liability to the department before the department gives
11       the taxpayer notice of the liability, then a two-year
         statute of limitations shall apply to assessment of
12       taxes, penalty, or interest;

13  --  Providing that the authority to toll the statute of
         limitations on tax assessments when the department issues
14       a notice of intent to audit applies solely to taxes due
         before July 1, 1998; and specifying that the authority to
15       toll the limitations period in the event of a judicial or
         administrative review applies to reviews initiated by the
16       taxpayer;

17  --  Providing for the establishment of an adjusted rate of
         interest, based on the adjusted prime rate, on tax
18       payment deficiencies that arise on or after July 1, 1998,
         unless a lower rate is provided in law;
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    --  Providing for the establishment of an adjusted rate of
20       interest, based on the adjusted prime rate, on refunds
         for tax payments made on or after July 1, 1998; and
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    --  Providing that the department, rather than a hearing
22       officer, must issue a final order within 90 days after an
         appeal to a hearing officer is filed by a taxpayer on an
23       assessment or penalty.

24  In addition, although the bill prescribes certain taxpayer
    rights in an as yet unnumbered section of the Florida
25  Statutes, the committee substitute, in several instances,
    amends existing sections of the Florida Statutes or creates
26  new sections in order to codify such rights. Both the bill and
    the committee substitute incorporate these rights into the
27  statutory Taxpayer's Bill of Rights.

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