Senate Bill 2498

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    Florida Senate - 1999                                  SB 2498

    By Senator Kirkpatrick





    5-1353-99

  1                      A bill to be entitled

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

  3         other transactions; amending s. 212.05, F.S.;

  4         providing an exemption on the sale of a

  5         thoroughbred horse to a nonresident of this

  6         state; providing conditions that must be met by

  7         the purchaser and the seller; providing an

  8         effective date.

  9

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

11

12         Section 1.  Paragraph (a) of subsection (1) of section

13  212.05, Florida Statutes, 1998 Supplement, is amended to read:

14         212.05  Sales, storage, use tax.--It is hereby declared

15  to be the legislative intent that every person is exercising a

16  taxable privilege who engages in the business of selling

17  tangible personal property at retail in this state, including

18  the business of making mail order sales, or who rents or

19  furnishes any of the things or services taxable under this

20  chapter, or who stores for use or consumption in this state

21  any item or article of tangible personal property as defined

22  herein and who leases or rents such property within the state.

23         (1)  For the exercise of such privilege, a tax is

24  levied on each taxable transaction or incident, which tax is

25  due and payable as follows:

26         (a)1.a.  At the rate of 6 percent of the sales price of

27  each item or article of tangible personal property when sold

28  at retail in this state, computed on each taxable sale for the

29  purpose of remitting the amount of tax due the state, and

30  including each and every retail sale.

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  1         b.  Each occasional or isolated sale of an aircraft,

  2  boat, mobile home, or motor vehicle of a class or type which

  3  is required to be registered, licensed, titled, or documented

  4  in this state or by the United States Government shall be

  5  subject to tax at the rate provided in this paragraph. The

  6  department shall by rule adopt any nationally recognized

  7  publication for valuation of used motor vehicles as the

  8  reference price list for any used motor vehicle which is

  9  required to be licensed pursuant to s. 320.08(1), (2), (3)(a),

10  (b), (c), or (e), or (9).  If any party to an occasional or

11  isolated sale of such a vehicle reports to the tax collector a

12  sales price which is less than 80 percent of the average loan

13  price for the specified model and year of such vehicle as

14  listed in the most recent reference price list, the tax levied

15  under this paragraph shall be computed by the department on

16  such average loan price unless the parties to the sale have

17  provided to the tax collector an affidavit signed by each

18  party, or other substantial proof, stating the actual sales

19  price.  Any party to such sale who reports a sales price less

20  than the actual sales price is guilty of a misdemeanor of the

21  first degree, punishable as provided in s. 775.082 or s.

22  775.083.  The department shall collect or attempt to collect

23  from such party any delinquent sales taxes.  In addition, such

24  party shall pay any tax due and any penalty and interest

25  assessed plus a penalty equal to twice the amount of the

26  additional tax owed.  Notwithstanding any other provision of

27  law, the Department of Revenue may waive or compromise any

28  penalty imposed pursuant to this subparagraph.

29         2.  This paragraph does not apply to the sale of a boat

30  or airplane by or through a registered dealer under this

31  chapter to a purchaser who, at the time of taking delivery, is

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    Florida Senate - 1999                                  SB 2498
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  1  a nonresident of this state, does not make his or her

  2  permanent place of abode in this state, and is not engaged in

  3  carrying on in this state any employment, trade, business, or

  4  profession in which the boat will be used in this state, or is

  5  a corporation none of the officers or directors of which is a

  6  resident of, or makes his or her permanent place of abode in,

  7  this state, or is a noncorporate entity that has no individual

  8  vested with authority to participate in the management,

  9  direction, or control of the entity's affairs who is a

10  resident of, or makes his or her permanent abode in, this

11  state. For purposes of this exemption, either a registered

12  dealer acting on his or her own behalf as seller, a registered

13  dealer acting as broker on behalf of a seller, or a registered

14  dealer acting as broker on behalf of the purchaser may be

15  deemed to be the selling dealer. This exemption shall not be

16  allowed unless:

17         a.  The purchaser removes a qualifying boat, as

18  described in sub-subparagraph f., from the state within 90

19  days after the date of purchase or the purchaser removes a

20  nonqualifying boat or an airplane from this state within 10

21  days after the date of purchase or, when the boat or airplane

22  is repaired or altered, within 20 days after completion of the

23  repairs or alterations;

24         b.  The purchaser, within 30 days from the date of

25  departure, shall provide the department with written proof

26  that the purchaser licensed, registered, titled, or documented

27  the boat or airplane outside the state. If such written proof

28  is unavailable, within 30 days the purchaser shall provide

29  proof that the purchaser applied for such license, title,

30  registration, or documentation.  The purchaser shall forward

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    Florida Senate - 1999                                  SB 2498
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  1  to the department proof of title, license, registration, or

  2  documentation upon receipt.

  3         c.  The purchaser, within 10 days of removing the boat

  4  or airplane from Florida, shall furnish the department with

  5  proof of removal in the form of receipts for fuel, dockage,

  6  slippage, tie-down, or hangaring from outside of Florida.  The

  7  information so provided must clearly and specifically identify

  8  the boat or aircraft;

  9         d.  The selling dealer, within 5 days of the date of

10  sale, shall provide to the department a copy of the sales

11  invoice, closing statement, bills of sale, and the original

12  affidavit signed by the purchaser attesting that he or she has

13  read the provisions of this section;

14         e.  The seller makes a copy of the affidavit a part of

15  his or her record for as long as required by s. 213.35; and

16         f.  Unless the nonresident purchaser of a boat of 5 net

17  tons of admeasurement or larger intends to remove the boat

18  from this state within 10 days after the date of purchase or

19  when the boat is repaired or altered, within 20 days after

20  completion of the repairs or alterations, the nonresident

21  purchaser shall apply to the selling dealer for a decal which

22  authorizes 90 days after the date of purchase for removal of

23  the boat.  The department is authorized to issue decals in

24  advance to dealers.  The number of decals issued in advance to

25  a dealer shall be consistent with the volume of the dealer's

26  past sales of boats which qualify under this sub-subparagraph.

27  The selling dealer or his or her agent shall mark and affix

28  the decals to qualifying boats in the manner prescribed by the

29  department, prior to delivery of the boat.

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  1         (I)  The department is hereby authorized to charge

  2  dealers a fee sufficient to recover the costs of decals

  3  issued.

  4         (II)  The proceeds from the sale of decals will be

  5  deposited into the administrative trust fund.

  6         (III)  Decals shall display information to identify the

  7  boat as a qualifying boat under this sub-subparagraph,

  8  including, but not limited to, the decal's date of expiration.

  9         (IV)  The department is authorized to require dealers

10  who purchase decals to file reports with the department and

11  may prescribe all necessary records by rule. All such records

12  are subject to inspection by the department.

13         (V)  Any dealer or his or her agent who issues a decal

14  falsely, fails to affix a decal, mismarks the expiration date

15  of a decal, or fails to properly account for decals will be

16  considered prima facie to have committed a fraudulent act to

17  evade the tax and will be liable for payment of the tax plus a

18  mandatory penalty of 200 percent of the tax, and shall be

19  liable for fine and punishment as provided by law for a

20  conviction of a misdemeanor of the first degree, as provided

21  in s. 775.082 or s. 775.083.

22         (VI)  Any nonresident purchaser of a boat who removes a

23  decal prior to permanently removing the boat from the state,

24  or defaces, changes, modifies, or alters a decal in a manner

25  affecting its expiration date prior to its expiration, or who

26  causes or allows the same to be done by another, will be

27  considered prima facie to have committed a fraudulent act to

28  evade the tax and will be liable for payment of the tax plus a

29  mandatory penalty of 200 percent of the tax, and shall be

30  liable for fine and punishment as provided by law for a

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  1  conviction of a misdemeanor of the first degree, as provided

  2  in s. 775.082 or s. 775.083.

  3         (VII)  The department is authorized to adopt rules

  4  necessary to administer and enforce this subparagraph and to

  5  publish the necessary forms and instructions.

  6         (VIII)  The department is hereby authorized to adopt

  7  emergency rules pursuant to s. 120.54(4) to administer and

  8  enforce the provisions of this subparagraph.

  9

10  If the purchaser fails to remove the qualifying boat from this

11  state within 90 days after purchase or a nonqualifying boat or

12  an airplane from this state within 10 days after purchase or,

13  when the boat or airplane is repaired or altered, within 20

14  days after completion of such repairs or alterations, or

15  permits the boat or airplane to return to this state within 6

16  months from the date of departure, or if the purchaser fails

17  to furnish the department with any of the documentation

18  required by this subparagraph within the prescribed time

19  period, the purchaser shall be liable for use tax on the cost

20  price of the boat or airplane and, in addition thereto,

21  payment of a penalty to the Department of Revenue equal to the

22  tax payable.  This penalty shall be in lieu of the penalty

23  imposed by s. 212.12(2) and is mandatory and shall not be

24  waived by the department.  The 90-day period following the

25  sale of a qualifying boat tax exempt to a nonresident may not

26  be tolled for any reason. Notwithstanding other provisions of

27  this paragraph to the contrary, an aircraft purchased in this

28  state under the provisions of this paragraph may be returned

29  to this state for repairs within 6 months after the date of

30  its departure without being in violation of the law and

31  without incurring liability for the payment of tax or penalty

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    Florida Senate - 1999                                  SB 2498
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  1  on the purchase price of the aircraft if the aircraft is

  2  removed from this state within 20 days after the completion of

  3  the repairs and if such removal can be demonstrated by

  4  invoices for fuel, tie-down, hangar charges issued by

  5  out-of-state vendors or suppliers, or similar documentation.

  6         3.  This paragraph does not apply to the sale to a

  7  nonresident of this state of any thoroughbred horse that is

  8  removed from the state within 10 days after purchase. The

  9  purchaser must execute an affidavit stating that the horse

10  will be removed from this state and must provide to the seller

11  proof of such removal in the form of shipping invoices, bills

12  of lading, or similar documentation. The seller must keep the

13  affidavit and other proof of removal as business records for

14  as long as records are required to be kept under s. 213.35.

15         Section 2.  This act shall take effect July 1, 1999.

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18                          SENATE SUMMARY

19    Provides an exemption to the tax on sales, storage, and
      use which is imposed by s. 212.05(1)(a), F.S., for the
20    sale of a thoroughbred horse to a nonresident of Florida.
      Provides conditions that must be met by the buyer and by
21    the seller.

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