House Bill 4567

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    Florida House of Representatives - 1998                HB 4567

        By Representative Arnall






  1                      A bill to be entitled

  2         An act relating to taxation; amending ss.

  3         95.091, 199.282, 201.17, 212.12, 215.26, and

  4         220.211, F.S.; creating ss. 213.235 and

  5         213.255, F.S.; amending certain statutes of

  6         limitation; reducing the period for tolling of

  7         the statute of limitations; prescribing

  8         circumstances for the tolling of the statute of

  9         limitations as a result of administrative or

10         judicial proceedings; reducing the delinquency

11         penalty for certain taxes; providing the rate

12         of interest to be charged on certain tax

13         deficiencies and providing for periodic

14         readjustment thereof; providing circumstances

15         under which the Department of Revenue is to pay

16         interest to the taxpayer; specifying when

17         applications for refunds must be filed;

18         providing an effective date.

19

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

21

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

23  Florida Statutes, are amended to read:

24         95.091  Limitation on actions to collect taxes.--

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

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

27  the Department of Revenue may determine and assess the amount

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

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

30  Department of Business and Professional Regulation may

31  determine and assess the amount of any tax, penalty, or

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

  2  has authority to administer:

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

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

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

  6  and for taxes due on or after July 1, 1998, within 3 years

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

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

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

10  after the date the taxpayer either makes a substantial

11  underpayment of tax, or files a substantially incorrect

12  return;

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

14  of the tax is available to the taxpayer;

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

16  after the taxpayer has filed a grossly false return;

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

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

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

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

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

22  taxpayer has disclosed in writing the tax liability to the

23  department before the department has contacted the taxpayer;

24  or

25         f.e.  In any case in which there has been a refund of

26  tax erroneously made for any reason:

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

28  after making such refund; and

29         (II)  For taxes due on or after July 1, 1998, within 3

30  years after making such refund,

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

  2  part of the refund was induced by fraud or the

  3  misrepresentation of a material fact.

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

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

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

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

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

  9         (b)1.  The limitations in this subsection shall be

10  tolled for a period of 2 years with respect to audits in which

11  the notice of intent to conduct the audit was issued before

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

13  of intent to conduct an audit or investigation of the

14  taxpayer's account within the applicable period of time as

15  specified in this subsection.  The department shall commence

16  an audit within 120 days after it issues a notice of intent to

17  conduct an audit, unless the taxpayer requests a delay.  If

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

19  not begin the audit within 120 days after issuing the notice,

20  the tolling period shall terminate.

21         2.  For audits in which the notice of intent to conduct

22  the audit was issued on or after July 1, 1998, the limitation

23  period shall be tolled for 1 year after issuing the notice. If

24  the taxpayer does not enter into an agreement to extend the

25  period pursuant to s. 213.23, the tolling period shall

26  terminate after 1 year.

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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  1  shall include taxpayer protest proceedings initiated under s.

  2  213.21 and department rules.

  3         Section 2.  Paragraph (a) of subsection (3) and

  4  subsection (4) of section 199.282, Florida Statutes, are

  5  amended to read:

  6         199.282  Penalties for violation of this chapter.--

  7         (3)(a)  If any annual or nonrecurring tax is not paid

  8  by the due date, a delinquency penalty shall be charged.  The

  9  delinquency penalty shall be 5 10 percent of the delinquent

10  tax for each calendar month or portion thereof from the due

11  date until paid, up to a limit of 25 50 percent of the total

12  tax not timely paid.

13         (4)  If an annual tax return is filed and property is

14  either omitted from it or undervalued, then a specific penalty

15  shall be charged.  The specific penalty shall be 15 30 percent

16  of the tax attributable to each omitted item or to each

17  undervaluation. No delinquency or late filing penalty shall be

18  charged with respect to any undervaluation.

19         Section 3.  Section 201.17, Florida Statutes, is

20  amended to read:

21         201.17  Penalties for failure to pay tax required.--

22         (1)  Whoever makes, signs, issues, or accepts, or

23  causes to be made, signed, issued, or accepted, any

24  instrument, document, or paper of any kind or description

25  whatsoever, without the full amount of the tax herein imposed

26  thereon being fully paid, or whoever makes use of any adhesive

27  stamp to denote any tax imposed by this chapter without

28  canceling or obliterating such stamps as herein provided, is

29  guilty of a misdemeanor of the first degree, punishable as

30  provided in s. 775.082 or s. 775.083.

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  1         (2)  If any document, instrument, or paper upon which

  2  the tax under this chapter is imposed, upon audit or at time

  3  of recordation, does not show the proper amount of tax paid,

  4  or if the tax imposed by this chapter on any document,

  5  instrument, or paper is not timely reported and paid as

  6  required by s. 201.133, the person or persons liable for the

  7  tax upon the document, instrument, or paper shall be subject

  8  to:

  9         (a)  Payment of the tax not paid.

10         (b)  A specific penalty added to the tax in the amount

11  of 5 10 percent per month or part of a month of any unpaid tax

12  if the failure is for not more than 30 days, with an

13  additional 10 percent of any unpaid tax for each additional 30

14  days, or fraction thereof, during the time which the failure

15  continues, not to exceed a total penalty of 25 50 percent, in

16  the aggregate, of any unpaid tax.  In no event shall the

17  penalty be less than $10 for failure to timely file a tax

18  return required.  If it is determined by clear and convincing

19  evidence that any part of a deficiency is due to fraud, there

20  shall be added to the tax as a civil penalty, in lieu of the

21  aforementioned penalty under this paragraph, an amount equal

22  to 200 percent of the deficiency.  These penalties are to be

23  in addition to, and not in lieu of, any other penalties

24  imposed by law.

25         (c)  Payment of interest to the Department of Revenue,

26  accruing from the date the tax is due until paid, at the rate

27  of 1 percent per month, based on the amount of tax not paid.

28         (3)  The department may settle or compromise any

29  interest or penalties pursuant to s. 213.21.

30         Section 4.  Paragraph (a) of subsection (2) of section

31  212.12, Florida Statutes, is amended to read:

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  1         212.12  Dealer's credit for collecting tax; penalties

  2  for noncompliance; powers of Department of Revenue in dealing

  3  with delinquents; brackets applicable to taxable transactions;

  4  records required.--

  5         (2)(a)  When any person, firm, or corporation required

  6  hereunder to make any return or to pay any tax or fee imposed

  7  by this chapter fails to timely file such return or fails to

  8  pay the tax or fee due within the time required hereunder, in

  9  addition to all other penalties provided herein and by the

10  laws of this state in respect to such taxes or fees, a

11  specific penalty shall be added to the tax or fee in the

12  amount of 5 10 percent per month or part of a month of any

13  unpaid tax or fee if the failure is for not more than 30 days,

14  with an additional 10 percent of any unpaid tax or fee for

15  each additional 30 days, or fraction thereof, during the time

16  which the failure continues, not to exceed a total penalty of

17  25 50 percent, in the aggregate, of any unpaid tax or fee.  In

18  no event may The penalty may not be less than $10 for failure

19  to timely file a tax return required by s. 212.11(1)(b) or $5

20  for failure to timely file a tax return authorized by s.

21  212.11(1)(c) or (d). In the case of a false or fraudulent

22  return or a willful intent to evade payment of any tax or fee

23  imposed under this chapter, in addition to the other penalties

24  provided by law, the person making such false or fraudulent

25  return or willfully attempting to evade the payment of such a

26  tax or fee shall be liable for a specific penalty of 100

27  percent of the tax bill or fee and for fine and punishment as

28  provided by law for a conviction of a misdemeanor of the first

29  degree.

30         Section 5.  Section 213.235, Florida Statutes, is

31  created to read:

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  1         213.235  Determination of interest on deficiencies.--

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

  3  annual rate of interest applicable to tax payment deficiencies

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

  5  rate established by the executive director of the department

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

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

  8  lower rate applies. This annual rate of interest applies to

  9  all taxes enumerated in s. 213.05 other than ad valorem taxes

10  levied on real or tangible personal property.

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

12  rounded to the nearest full percent, during either:

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

14  calendar year; or

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

16  calendar year,

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

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

20  establish an adjusted rate of interest equal to such adjusted

21  prime rate.

22         (3)  An adjusted rate of interest established under

23  this section becomes effective:

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

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

26  September 30; or

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

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

29  31.

30         (4)  For the purposes of this section, the term

31  "adjusted prime rate charged by banks" means the average

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  1  predominant prime rate quoted by commercial banks to large

  2  businesses, as determined by the Board of Governors of the

  3  Federal Reserve System.

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

  5  remains in effect until further adjusted under subsection (2).

  6         Section 6.  Section 213.255, Florida Statutes, is

  7  created to read:

  8         213.255  Interest.--Interest shall be paid on

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

10  in error, subject to the following conditions:

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

12  department within the time specified by s. 215.26.

13         (2)  A refund application may not be processed until it

14  is complete. A refund application is complete if it is filed

15  on a permitted form and:

16         (a)  Contains the taxpayer's name, address, identifying

17  numbers, and signature;

18         (b)  Provides sufficient information, whether on the

19  application or attachments, to permit mathematical

20  verification of the amount of the refund;

21         (c)  Specifies the amount claimed, the specific grounds

22  upon which the refund is claimed, and the taxable years or

23  periods involved; and

24         (d)  Includes a completed audit, if an audit is

25  required by the department.

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

27  department shall notify the taxpayer of the inadequacy and

28  instruct the applicant of what is needed to complete the

29  application.

30         (4)  Interest shall not begin to accrue until 90 days

31  after a complete refund application has been filed and the

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  1  amount of overpayment has not been refunded to the taxpayer or

  2  applied as a credit to the taxpayer's account. If the

  3  department and the taxpayer mutually agree that an audit of

  4  the claim is necessary, interest shall not begin to accrue

  5  until the audit of the claim is final or until 90 days after

  6  the date the complete refund application has been filed,

  7  whichever is later.

  8         (5)  If a tax is adjudicated unconstitutional and

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

10  on complete applications until 90 days after the adjudication

11  becomes final and unappealable or 90 days after a complete

12  application has been filed, whichever is later.

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

14  the department which must be no earlier than 7 days prior to

15  the date of the issuance of the refund warrant by the

16  Comptroller.

17         (7)  Interest shall not be paid if the department has

18  reasonable cause to believe that it could not recover the

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

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

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

22  other security arrangements satisfactory to the department.

23  The cash or surety bond must be endorsed by the surety company

24  authorized to do business in this state and must be

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

26  paid in error for any reason. The department shall give

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

28  is required, in which case interest shall not commence until

29  the person filing the claim satisfies this requirement.

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

31  established under s. 213.235. This annual rate of interest

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  1  shall be applied to all refunds of taxes administered by the

  2  department.

  3         (9)  This section applies to eligible refunds based on

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

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

  6  Statutes, is amended to read:

  7         215.26  Repayment of funds paid into State Treasury

  8  through error.--

  9         (2)  Application for refunds as provided by this

10  section must be filed with the Comptroller, except as

11  otherwise provided in this subsection, within 3 years after

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

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

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

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

16  1, 1998, must be filed with the Comptroller within 5 years

17  after the date the tax is paid, and within 3 years after the

18  date the tax is paid for tax paid on or after July 1, 1998.

19  The Comptroller may delegate the authority to accept an

20  application for refund to any state agency, or the judicial

21  branch, vested by law with the responsibility for the

22  collection of any tax, license, or account due. The

23  application for refund must be on a form approved by the

24  Comptroller and must be supplemented with additional proof the

25  Comptroller deems necessary to establish the claim; provided,

26  the claim is not otherwise barred under the laws of this

27  state. Upon receipt of an application for refund, the judicial

28  branch or the state agency to which the funds were paid shall

29  make a determination of the amount due. If an application for

30  refund is denied, in whole or in part, the judicial branch or

31  such state agency shall notify the applicant stating the

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  1  reasons therefor. Upon approval of an application for refund,

  2  the judicial branch or such state agency shall furnish the

  3  Comptroller with a properly executed voucher authorizing

  4  payment.

  5         Section 8.  Section 220.211, Florida Statutes, is

  6  amended to read:

  7         220.211  Penalties; incomplete return.--

  8         (1)  If In the case where an incomplete return is made,

  9  unless notwithstanding that no tax is finally determined to be

10  due for the taxable year, there shall be added to the amount

11  of tax, penalty, and interest otherwise due a penalty in the

12  amount of 5 percent per month, not exceeding an aggregate of

13  $300 or 10 percent, of the tax finally determined to be due,

14  whichever is greater; however, such a penalty must shall not

15  exceed $10,000, and the taxpayer is exempt from this penalty

16  if a penalty is imposed on him or her under s. 220.801 with

17  respect to the same return.  The department may settle or

18  compromise such penalties pursuant to s. 213.21.

19         (2)  As used in An "incomplete return" is, for the

20  purposes of this code, the term "incomplete return" means a

21  return that lacks which is lacking such uniformity,

22  completeness, and arrangement to the extent that physical

23  handling, verification, or review of the return may not be

24  readily accomplished.

25         Section 9.  This act shall take effect July 1 of the

26  year in which enacted.

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises time periods within which the Department of
  4    Revenue and the Department of Business and Professional
      Regulation may determine and assess the amount of any
  5    tax, penalty, or interest due under taxes which they have
      authority to administer, and related provisions for
  6    tolling these periods.

  7
      Reduces delinquency penalties for certain taxes.
  8

  9    Provides that the annual rate of interest on certain tax
      payment deficiencies shall be a floating rate based on
10    the prime rate, unless a lower rate is provided by law.

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      Provides for payment of interest on overpayments of taxes
12    administered by the Department of Revenue if refund is
      not made within a specified period.  Provides
13    requirements for refund applications.  Revises the time
      period within which a refund application must be made.
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