House Bill 1113

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    Florida House of Representatives - 1999                HB 1113

        By Representative Brummer






  1                      A bill to be entitled

  2         An act relating to taxation; amending ss.

  3         95.091, 212.07, 212.18, 213.053, 215.26, F.S.;

  4         creating ss. 213.235, 213.255, F.S.; amending

  5         certain statutes of limitation; reducing the

  6         period for tolling of the statute of

  7         limitations; prescribing circumstances for the

  8         tolling of the statute of limitations as a

  9         result of administrative or judicial

10         proceedings; providing for the annual issuance

11         of resale certificates to active accounts;

12         authorizing the Department of Revenue to

13         disclose to a dealer or taxpayer whether a

14         specified certificate is active, canceled,

15         inactive, or invalid; providing for periodic

16         adjustment of the rate of interest to be

17         charged on certain tax deficiencies; providing

18         circumstances under which the Department of

19         Revenue is to pay interest to the taxpayer;

20         specifying when applications for refunds must

21         be filed; directing the Department of Revenue

22         to establish a toll-free number for the

23         verification of valid registration numbers and

24         resale certificates; directing the Department

25         of Revenue to establish a system for receiving

26         information from dealers regarding certificate

27         numbers; directing the Department of Revenue to

28         expand its dealer education program regarding

29         the proper use of resale certificates;

30         providing appropriations; providing effective

31         dates.

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

  2

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

  4  Florida Statutes, are amended to read:

  5         95.091  Limitation on actions to collect taxes.--

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

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

  8  the Department of Revenue may determine and assess the amount

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

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

11  Department of Business and Professional Regulation may

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

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

14  has authority to administer:

15         a.  For taxes due before July 1, 1999, within 5 years

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

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

18  and for taxes due on or after July 1, 1999, within 3 years

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

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

21         b.  For taxes due before July 1, 1999, within 6 years

22  after the date the taxpayer either makes a substantial

23  underpayment of tax, or files a substantially incorrect

24  return;

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

26  of the tax is available to the taxpayer;

27         d.  For taxes due before July 1, 1999, at any time

28  after the taxpayer has filed a grossly false return;

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

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

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

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  1  except that for taxes due on or after July 1, 1999, the

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

  3  taxpayer has disclosed in writing the tax liability to the

  4  department before the department has contacted the taxpayer;

  5  or

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

  7  tax erroneously made for any reason:

  8         (I)  For refunds made before July 1, 1999, within 5

  9  years after making such refund; and

10         (II)  For refunds made on or after July 1, 1999, within

11  3 years after making such refund,

12

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

14  part of the refund was induced by fraud or the

15  misrepresentation of a material fact.

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

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

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

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

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

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

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

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

24  July 1, 1999, if the Department of Revenue has issued a notice

25  of intent to conduct an audit or investigation of the

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

27  specified in this subsection.  The department shall commence

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

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

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

31

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

  2  the tolling period shall terminate.

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

  4  the audit was issued on or after July 1, 1999, the limitation

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

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

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

  8  terminate after 1 year.

  9         (4)  If administrative or judicial proceedings for

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

11  taxpayer begun within the a period of limitation prescribed in

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

13  the pendency of the proceeding. Administrative proceedings

14  shall include taxpayer protest proceedings initiated under s.

15  213.21 and department rules.

16         Section 2.  Effective February 1, 2000, paragraph (b)

17  of subsection (1) of section 212.07, Florida Statutes, 1998

18  Supplement, is 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         (b)  A resale must be in strict compliance with s.

25  212.18 and the rules and regulations, and any dealer who makes

26  a sale for resale which is not in strict compliance with s.

27  212.18 and the rules and regulations shall himself or herself

28  be liable for and pay the tax. A dealer who makes a sale for

29  resale shall document the exempt status of the transaction, as

30  established by rules adopted by the department, by retaining a

31  copy of the purchaser's resale certificate. In lieu of

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  1  maintaining a copy of the certificate, a dealer may document,

  2  before the sale, an authorization number provided by the

  3  department electronically or by telephone, or by other means

  4  established by the department by rule. The department shall

  5  adopt rules that provide that, for purchasers who continually

  6  purchase on account from a dealer, the dealer may rely on a

  7  resale certificate issued under s. 212.18(3)(c) which is valid

  8  at the time of receipt from the purchaser, without seeking

  9  annual verification of the resale certificate. A dealer may,

10  through the informal protest provided for in s. 213.21 and the

11  rules of the Department of Revenue, provide the department

12  with evidence of the exempt status of a sale.  The Department

13  of Revenue shall adopt rules which provide that valid resale

14  certificates and Consumer certificates of exemption executed

15  by those dealers or exempt entities that which were registered

16  with the department at the time of sale, resale certificates

17  provided by purchasers who were active dealers at the time of

18  sale, and verification by the department of a purchaser's

19  active dealer status at the time of sale in lieu of a resale

20  certificate shall be accepted by the department when submitted

21  during the protest period, but may not be accepted in any

22  proceeding under chapter 120 or any circuit court action

23  instituted under chapter 72.

24         Section 3.  Effective January 1, 2000, subsection (3)

25  of section 212.18, Florida Statutes, 1998 Supplement, is

26  amended to read:

27         212.18  Administration of law; registration of dealers;

28  rules.--

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

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

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

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  1  quarters or sleeping or housekeeping accommodations in hotels,

  2  apartment houses, roominghouses, or tourist or trailer camps

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

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

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

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

  7  application for a certificate of registration for each place

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

  9  interests in such business and their residences, the address

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

11  reasonably require. However, owners and operators of vending

12  machines or newspaper rack machines are required to obtain

13  only one certificate of registration for each county in which

14  such machines are located. The department, by rule, may

15  authorize a dealer that uses independent sellers to sell its

16  merchandise to remit tax on the retail sales price charged to

17  the ultimate consumer in lieu of having the independent seller

18  register as a dealer and remit the tax. The department may

19  appoint the county tax collector as the department's agent to

20  accept applications for registrations. The application must be

21  made to the department before the person, firm, copartnership,

22  or corporation may engage in such business, and it must be

23  accompanied by a registration fee of $5. However, a

24  registration fee is not required to accompany an application

25  to engage in or conduct business to make mail order sales.

26         (b)  The department, upon receipt of such application,

27  will grant to the applicant a separate certificate of

28  registration for each place of business, which certificate may

29  be canceled by the department or its designated assistants for

30  any failure by the certificateholder to comply with any of the

31  provisions of this chapter. The certificate is not assignable

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  1  and is valid only for the person, firm, copartnership, or

  2  corporation to which issued. The certificate must be placed in

  3  a conspicuous place in the business or businesses for which it

  4  is issued and must be displayed at all times. Except as

  5  provided in this subsection paragraph, no person shall engage

  6  in business as a dealer or in leasing, renting, or letting of

  7  or granting licenses in living quarters or sleeping or

  8  housekeeping accommodations in hotels, apartment houses,

  9  roominghouses, tourist or trailer camps, or real property as

10  hereinbefore defined, nor shall any person sell or receive

11  anything of value by way of admissions, without first having

12  obtained such a certificate or after such certificate has been

13  canceled; no person shall receive any license from any

14  authority within the state to engage in any such business

15  without first having obtained such a certificate or after such

16  certificate has been canceled. The engaging in the business of

17  selling or leasing tangible personal property or services or

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

19  leasing, renting, or letting of or granting licenses in living

20  quarters or sleeping or housekeeping accommodations in hotels,

21  apartment houses, roominghouses, or tourist or trailer camps

22  that are taxable under this chapter, or real property, or the

23  engaging in the business of selling or receiving anything of

24  value by way of admissions, without such certificate first

25  being obtained or after such certificate has been canceled by

26  the department, is prohibited. The failure or refusal of any

27  person, firm, copartnership, or corporation to so qualify when

28  required hereunder is a misdemeanor of the first degree,

29  punishable as provided in s. 775.082 or s. 775.083, or subject

30  to injunctive proceedings as provided by law. Such failure or

31  refusal also subjects the offender to a $100 initial

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  1  registration fee in lieu of the $5 registration fee authorized

  2  in this paragraph (a).  However, the department may waive the

  3  increase in the registration fee if it is determined by the

  4  department that the failure to register was due to reasonable

  5  cause and not to willful negligence, willful neglect, or

  6  fraud.

  7         (c)  In addition to the certificate of registration,

  8  the department shall provide to each newly registered dealer

  9  an initial resale certificate that is valid for the remainder

10  of the period of issuance. The department shall provide each

11  active dealer with an annual resale certificate. As used in

12  this section, the term "active dealer" means a person who is

13  currently registered with the department and who complies with

14  the requirement to file at least once during each applicable

15  reporting period.

16         (d)(b)  The department may revoke any dealer's

17  certificate of registration when the dealer fails to comply

18  with this chapter. Prior to revocation of a dealer's

19  certificate of registration, the department must schedule an

20  informal conference at which the dealer may present evidence

21  regarding the department's intended revocation or enter into a

22  compliance agreement with the department. The department must

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

24  and date of the scheduled informal conference by written

25  notification sent by United States mail to the dealer's last

26  known address of record furnished by the dealer on a form

27  prescribed by the department. The dealer is required to attend

28  the informal conference and present evidence refuting the

29  department's intended revocation or enter into a compliance

30  agreement with the department which resolves the dealer's

31  failure to comply with this chapter. The department shall

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  1  issue an administrative complaint under s. 120.60 if the

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

  3  fails to enter into a compliance agreement with the department

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

  5  fails to comply with the executed compliance agreement.

  6         (e)(c)  As used in this paragraph, the term "exhibitor"

  7  means a person who enters into an agreement authorizing the

  8  display of tangible personal property or services at a

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

10  the registration of exhibitors as dealers under this chapter:

11         1.  An exhibitor whose agreement prohibits the sale of

12  tangible personal property or services subject to the tax

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

14  dealer.

15         2.  An exhibitor whose agreement provides for the sale

16  at wholesale only of tangible personal property or services

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

18  resale certificate from the purchasing dealer but is not

19  required to register as a dealer.

20         3.  An exhibitor whose agreement authorizes the retail

21  sale of tangible personal property or services subject to the

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

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

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

25  to s. 212.0596 must register as a dealer.

26

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

28  their exhibitor's agreements available to the department for

29  inspection and copying.

30

31

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  1         Section 4.  Effective January 1, 2000, subsection (10)

  2  of section 213.053, Florida Statutes, 1998 Supplement, is

  3  amended to read:

  4         213.053  Confidentiality and information sharing.--

  5         (10)  Notwithstanding any other provision of this

  6  section, with respect to a request for verification of a

  7  certificate of registration issued pursuant to s. 212.18 to a

  8  specified dealer or taxpayer or with respect to a request by a

  9  law enforcement officer for verification of a certificate of

10  registration issued pursuant to s. 538.09 to a specified

11  secondhand dealer or pursuant to s. 538.25 to a specified

12  secondary metals recycler, the department may disclose whether

13  the specified person holds a valid certificate or whether a

14  specified certificate number is valid, canceled, inactive, or

15  invalid and the name of the holder of the such certificate.

16  This subsection shall not be construed to create a duty to

17  request verification of any certificate of registration.

18         Section 5.  Section 213.235, Florida Statutes, is

19  created to read:

20         213.235  Determination of interest on deficiencies.--

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

22  annual rate of interest applicable to tax payment deficiencies

23  that arise on or after July 1, 1999, shall be the adjusted

24  rate established by the executive director of the department

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

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

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

28  all taxes enumerated in s. 213.05.

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

30  rounded to the nearest full percent, during either:

31

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

  2  calendar year, or

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

  4  calendar year

  5

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

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

  8  establish an adjusted rate of interest equal to such adjusted

  9  prime rate.

10         (3)  An adjusted rate of interest established under

11  this section becomes effective:

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

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

14  September 30; or

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

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

17  31.

18         (4)  As used in this section, the term "adjusted prime

19  rate charged by banks" means the average predominant prime

20  rate quoted by commercial banks to large businesses, as

21  determined by the Board of Governors of the Federal Reserve

22  System.

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

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

25         Section 6.  Section 213.255, Florida Statutes, is

26  created to read:

27         213.255  Interest.--Interest shall be paid on

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

29  in error, subject to the following conditions:

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

31  department within the time specified by s. 215.26.

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

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

  3  on a permitted form and contains:

  4         (a)  The taxpayer's name, address, identifying numbers,

  5  and signature;

  6         (b)  Sufficient information, whether on the application

  7  or attachments, to permit mathematical verification of the

  8  amount of the refund;

  9         (c)  The amount claimed;

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

11  claimed;

12         (e)  The taxable years or periods involved; and

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

14  department.

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

16  department shall notify the taxpayer of the inadequacy and

17  instruct the applicant of what is needed to complete the

18  application.

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

20  after a complete refund application has been filed and the

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

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

23  department and the taxpayer mutually agree that an audit of

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

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

26  the date the complete refund application has been filed,

27  whichever is later.

28         (5)  If a tax is adjudicated unconstitutional and

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

30  on complete applications until 90 days after the adjudication

31

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  1  becomes final and unappealable or 90 days after a complete

  2  application has been filed, whichever is later.

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

  4  the department which must be no earlier than 7 days before the

  5  date on which the Comptroller issues the refund warrant.

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

  7  reasonable cause to believe that it could not recover the

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

  9  the refund, unless the person files a cash bond or a surety

10  bond in the amount of the refund claimed or the person makes

11  other security arrangements satisfactory to the department.

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

13  authorized to do business in this state and must be

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

15  paid in error for any reason. The department shall provide

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

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

18  the person filing the claim satisfies this requirement.

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

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

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

22  department.

23         (9)  Interest that is paid pursuant to this section

24  shall be paid proportionately from the funds or sources into

25  which the tax that is refunded was or should have been

26  disbursed or distributed after the tax was collected.

27         (10)  This section applies to eligible refunds based on

28  tax payments made on or after July 1, 1999.

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

30  Statutes, is amended to read:

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  1         215.26  Repayment of funds paid into State Treasury

  2  through error.--

  3         (2)  Application for refunds as provided by this

  4  section must be filed with the Comptroller, except as

  5  otherwise provided in this subsection, within 3 years after

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

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

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

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

10  1, 1999, must be filed with the Comptroller within 5 years

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

12  date the tax was paid for taxes paid on or after July 1, 1999.

13  The Comptroller may delegate the authority to accept an

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

15  branch, vested by law with the responsibility for the

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

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

18  Comptroller and must be supplemented with additional proof the

19  Comptroller deems necessary to establish the claim; provided,

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

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

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

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

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

25  such state agency shall notify the applicant stating the

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

27  the judicial branch or such state agency shall furnish the

28  Comptroller with a properly executed voucher authorizing

29  payment.

30         Section 8.  Effective January 1, 2000, the Department

31  of Revenue shall establish a toll-free number for the

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  1  verification of valid registration numbers and resale

  2  certificates. The system must be adequate to guarantee a low

  3  busy rate, must respond to keypad inquiries, and must provide

  4  data that is updated daily.

  5         Section 9.  The Department of Revenue shall establish a

  6  system, effective January 1, 2000, for receiving information

  7  from dealers regarding certificate numbers of those who are

  8  seeking to make purchases for resale. The department must

  9  provide such dealers, free of charge, with verification of

10  those numbers that are canceled or invalid.

11         Section 10.  Effective July 1, 1999, the Department of

12  Revenue shall expand its dealer education program regarding

13  the proper use of resale certificates. The expansion must

14  include, but need not be limited to, revision of the

15  registration application for clarity, development of

16  industry-specific brochures, development of a media campaign

17  to heighten awareness of resale fraud and its consequences,

18  outreach to business and professional organizations, and

19  creation of seminars and continuing-education programs for

20  taxpayers and licensed professionals.

21         Section 11.  (1)  There is appropriated from the

22  General Revenue Fund to the Department of Revenue in fiscal

23  year 1999-2000, to be used in implementing the changes to the

24  resale certificate and related provisions of this act:

25         (2)  One and one-half full-time-equivalent positions

26  and the sum of $211,065 to be used for salaries, benefits, and

27  expenses; and

28         (3)  The sum of $23,455 to be used for operating

29  capital outlay.

30         Section 12.  Except as otherwise expressly provided in

31  this act, this act shall take effect July 1, 1999.

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

  2                          HOUSE SUMMARY

  3
      Revises the 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.
  6

  7    Provides that the annual rate of interest on tax payment
      deficiencies shall be a floating rate based on the prime
  8    rate.

  9
      Provides for payment of interest on overpayments of taxes
10    administered by the Department of Revenue if refund is
      not made within a specified period.  Provides
11    requirements for refund applications.  Revises the time
      period within which a refund application must be made.
12

13    Provides requirements with respect to sales for resale
      and documentation thereof, and provides for issuance of
14    initial and annual resale certificates to active sales
      tax dealers.  Authorizes the department to disclose
15    certain information regarding registration certificate
      numbers.  Directs the department to establish a toll-free
16    number for verification of registration numbers and
      resale certificates and a system to receive information
17    from dealers regarding purchasers for resale, and to
      expand its dealer education program regarding resale
18    certificates.  Provides an appropriation.

19

20

21

22

23

24

25

26

27

28

29

30

31

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