Senate Bill 1338c2
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Florida Senate - 2000 CS for CS for SB 1338
By the Committees on Regulated Industries, Fiscal Resource and
Senator Horne
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1 A bill to be entitled
2 An act relating to communications services;
3 creating ch. 202, F.S., the Communications
4 Services Tax Simplification Law; providing
5 definitions; providing for taxation of the sale
6 of communications services, effective January
7 1, 2002; providing for the rate of the tax on
8 the sales price of communications services and
9 on the cost of operating a substitute
10 communications system; providing for
11 computation by the Revenue Estimating
12 Conference of a rate applicable to
13 direct-to-home satellite service and for
14 approval by the Legislature; providing for
15 collection and remittance of the taxes on
16 communications services imposed by chapters 202
17 and 203, F.S., on a combined basis; providing a
18 limitation on such taxes on certain interstate
19 communications services; requiring the
20 purchaser to obtain a direct-pay permit;
21 providing exemptions for certain sales to
22 residential households, to governmental
23 entities, and to certain religious or
24 educational organizations; providing
25 legislative intent with respect to future
26 findings of invalidity, exemptions, and local
27 government franchise fees; providing for
28 credits for taxes paid in other jurisdictions;
29 providing special provisions for users of
30 substitute communications systems; providing
31 for payment and collection of the taxes on
1
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1 communications; providing for sales for resale;
2 providing requirements for registration of
3 dealers of communications services; providing
4 penalties; providing for fees; providing for
5 annual resale certificates; providing
6 procedures for revocation of registration;
7 providing for disposition of the proceeds of
8 the taxes on communications services;
9 authorizing counties and municipalities to levy
10 a discretionary local communications services
11 tax; providing intent regarding tax rates;
12 providing for imposition of a discretionary
13 sales surtax levied by a county or school board
14 under s. 212.055, F.S., as a local
15 communications services tax; providing for
16 application of local taxes to substitute
17 communications systems; providing a limitation
18 on local taxes on certain interstate
19 communications services; requiring the
20 purchaser to obtain a direct-pay permit;
21 providing for use of tax revenues; providing
22 for credit against local taxes for fees
23 required under a franchise agreement; providing
24 for computation by the Revenue Estimating
25 Conference of the initial and maximum rates for
26 local taxes and providing for approval by the
27 Legislature; providing for effectiveness of the
28 initial rates and for increase by emergency
29 ordinance under certain conditions; requiring
30 providers of communications services and local
31 taxing jurisdictions to furnish information;
2
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1 providing for determination by the Revenue
2 Estimating Conference of a rate conversion
3 factor for counties and school boards that levy
4 a discretionary sales surtax and providing for
5 approval by the Legislature; providing for
6 certain automatic rate reductions; providing
7 for effective dates and notification with
8 respect to adoption, repeal, or rate changes of
9 local taxes; providing procedures and
10 requirements for determination of the local
11 taxing jurisdiction in which a service address
12 is located; providing for creation of an
13 electronic database by the Department of
14 Revenue; providing for certification of
15 databases by the department; providing effect
16 on dealers who do not use the specified methods
17 for such determination; providing procedures
18 and requirements for refunds or credits of
19 communications services taxes; specifying that
20 the authority of public bodies to require taxes
21 or other impositions from dealers of
22 communications services for occupying roads and
23 rights-of-way is preempted by the state;
24 prohibiting public bodies from levying
25 specified taxes and other charges; providing
26 for jurisdiction for suits against dealers;
27 providing for dealers not qualified to do
28 business in this state; specifying powers of
29 the department; providing for rules; providing
30 requirements for the filing of returns and
31 payment of taxes; providing penalties;
3
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1 providing for rules for self-accrual; providing
2 for a dealer's credit; providing penalties for
3 failure to file returns or for filing false or
4 fraudulent returns; providing for credits or
5 refunds for bad debts; requiring certain
6 dealers to remit taxes by electronic funds
7 transfer and make returns through an electronic
8 data interchange; providing for payment of
9 taxes upon sale or quitting of business;
10 providing for notice to certain persons
11 regarding a dealer's delinquency and providing
12 such persons' duties; providing a penalty;
13 providing for cooperation of state and local
14 agencies; providing that taxes collected become
15 government funds; providing penalties for the
16 theft of government funds; providing department
17 powers regarding warrants, tax executions, and
18 writs of garnishment; providing recordkeeping
19 requirements for dealers; providing a penalty;
20 authorizing sampling by the department;
21 providing for examination of records; providing
22 for audits; providing for assessment of
23 interest and penalties; providing powers of the
24 department to assess from estimates; requiring
25 that taxes be separately stated; prohibiting
26 certain advertising or refunds by dealers;
27 providing a penalty; providing department
28 powers with respect to hearings, cash deposits
29 or bonds, and subpoenas; providing for venue;
30 providing special rules for the administration
31 of local taxes; providing for an advisory
4
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1 committee to advise the executive director of
2 the department regarding implementation of
3 communications services taxes; amending s.
4 72.011, F.S.; authorizing taxpayers to contest
5 assessments or denials of refund under ch. 202,
6 F.S., in circuit court or pursuant to the
7 Administrative Procedure Act; amending s.
8 213.05, F.S.; including ch. 202, F.S., within
9 the revenue laws for which the department has
10 responsibility; amending s. 213.053, F.S.;
11 including ch. 202, F.S., within confidentiality
12 provisions; authorizing provision of
13 information to local governments that impose a
14 local communications services tax; amending s.
15 212.20, F.S.; providing for distribution of
16 portions of the communications services tax;
17 amending s. 166.231, F.S.; providing that, for
18 the interim period prior to January 1, 2002,
19 the exemption from the municipal public service
20 tax for telecommunications services for resale
21 includes resale by way of a prepaid calling
22 arrangement; providing that taxes not collected
23 thereon prior to July 1, 2000, need not be
24 paid; repealing s. 166.231(9), F.S., which
25 provides for levy of the municipal public
26 service tax on telecommunication services,
27 effective January 1, 2002; conforming language;
28 amending s. 166.233, F.S.; conforming language;
29 amending s. 203.01, F.S.; providing that, for
30 the interim period prior to January 1, 2002,
31 the exemption from the gross receipts tax for
5
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1 telecommunication services for resale includes
2 resale by way of a prepaid calling arrangement;
3 providing for a gross receipts tax on
4 communications services, effective January 1,
5 2002, to be applied pursuant to ch. 202, F.S.;
6 amending s. 203.012, F.S.; removing and
7 revising definitions relating to the gross
8 receipts tax, to conform; repealing s. 203.013,
9 F.S., which provides for payment of the gross
10 receipts tax on interstate private
11 communications services, and ss. 203.60,
12 203.61, 203.62, and 203.63, F.S., which provide
13 for payment of the gross receipts tax on other
14 interstate and international telecommunication
15 services, to conform; amending s. 212.05, F.S.;
16 providing that the sale or recharge of a
17 prepaid calling arrangement shall be treated as
18 a sale of tangible personal property under ch.
19 212, F.S.; providing that the sale of
20 telecommunication services to a person who
21 furnishes such services pursuant to such an
22 arrangement is a sale for resale; providing
23 that taxes not collected thereon prior to July
24 1, 2000, need not be paid; removing the
25 imposition of tax under ch. 212, F.S., on
26 telecommunications service, telegraph messages,
27 long distance telephone calls, and television
28 system program service, effective January 1,
29 2002; amending s. 212.054, F.S.; providing that
30 charges for prepaid calling arrangements are
31 subject to discretionary sales surtaxes;
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1 conforming language; amending s. 337.401, F.S.;
2 providing requirements with respect to the
3 authority of counties and municipalities to
4 regulate the placement of telecommunications
5 facilities in the public roads or
6 rights-of-way; requiring certain notice to the
7 Secretary of State; revising such requirements,
8 effective January 1, 2002, and providing for
9 application to providers of communications
10 services; requiring municipalities and charter
11 counties and noncharter counties to choose
12 whether or not to impose permit fees on such
13 providers and providing requirements with
14 respect to such fees; providing effect of such
15 choice on the rate of the local communications
16 services tax under ch. 202, F.S., for the local
17 government; providing that the authority of
18 municipalities and counties to require
19 franchise fees from such providers is preempted
20 by the state; authorizing municipalities and
21 counties to request certain in-kind
22 requirements and contributions from cable
23 service providers; providing for a legislative
24 study with respect to state policy regarding
25 such in-kind requirements and contributions;
26 amending s. 212.031, F.S.; revising the
27 exemption from the tax on the lease or rental
28 of or license in real property for streets or
29 rights-of-way and improvements located thereon
30 used by a utility or cable television company;
31 including such exemption within provisions
7
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1 relating to leases involving multiple use of
2 property; providing appropriations and
3 authorizing positions; providing effective
4 dates.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Section 202.10, Florida Statutes, is
9 created to read:
10 202.10 Short title.--This chapter may be cited as the
11 "Communications Services Tax Simplification Law."
12 Section 2. Section 202.11, Florida Statutes, is
13 created to read:
14 202.11 Definitions.--As used in this chapter:
15 (1) "Actual cost of operating a substitute
16 communications system" includes, but is not limited to,
17 depreciation, interest, maintenance, repair, and other
18 expenses directly attributable to the operation of such
19 system. For purposes of this chapter, the depreciation expense
20 included in actual cost is the depreciation expense claimed
21 for federal income tax purposes. The total amount of any
22 payment required by a lease or rental contract or agreement
23 must be included within the actual cost of operating the
24 substitute communications system.
25 (2) "Cable service" means the transmission of video,
26 audio, or other programming service to purchasers, and the
27 purchaser interaction, if any, required for the selection or
28 use of any such programming service, regardless of whether the
29 programming is transmitted over facilities owned or operated
30 by the cable service provider or over facilities owned or
31 operated by one or more other dealers of communications
8
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1 services. The term includes point-to-multipoint distribution
2 services by which programming is transmitted or broadcast by
3 microwave or other equipment directly to the purchaser's
4 premises, but does not include direct-to-home satellite
5 service. The term includes basic, extended, premium,
6 pay-per-view, digital, and music services.
7 (3) "Communications services" means the transmission,
8 conveyance, or routing of voice, data, audio, video, or any
9 other information or signals, including cable services, to a
10 point, or between or among points, by or through any
11 electronic, radio, satellite, cable, optical, microwave, or
12 other medium or method now in existence or hereafter devised,
13 regardless of the protocol used for such transmission or
14 conveyance. The term does not include:
15 (a) Information services.
16 (b) Installation or maintenance of wiring or equipment
17 on a customer's premises.
18 (c) The sale or rental of tangible personal property.
19 (d) The sale of advertising, including, but not
20 limited to, directory advertising.
21 (e) Bad check charges.
22 (f) Late payment charges.
23 (g) Billing and collection services.
24 (h) Internet access service, electronic mail service,
25 electronic bulletin board service, or similar on-line computer
26 services.
27 (4) "Dealer" means a person registered with the
28 department as a provider of communications services in this
29 state.
30 (5) "Department" means the Department of Revenue.
31
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1 (6) "Direct-to-home satellite service" has the meaning
2 ascribed in the Communications Act of 1934, 47 U.S.C. s.
3 303(v).
4 (7) "Information service" means the offering of a
5 capability for generating, acquiring, storing, transforming,
6 processing, retrieving, using, or making available information
7 via communications services, including, but not limited to,
8 electronic publishing, web-hosting service, and end-user 900
9 number service. The term does not include any video, audio, or
10 other programming service that uses point-to-multipoint
11 distribution by which programming is delivered, transmitted,
12 or broadcast by any means, including any interaction that may
13 be necessary for selecting and using the service, regardless
14 of whether the programming is delivered, transmitted, or
15 broadcast over facilities owned or operated by the seller or
16 another, or whether denominated as cable service or as basic,
17 extended, premium, pay-per-view, digital, music, or two-way
18 cable service.
19 (8) "Mobile communications service" means any one-way
20 or two-way radio communications service, whether identified by
21 the dealer as local, toll, long distance, or otherwise, and
22 which is carried between mobile stations or receivers and land
23 stations, or by mobile stations communicating among
24 themselves, and includes, but is not limited to, cellular
25 communications services, personal communications services,
26 paging services, specialized mobile radio services, and any
27 other form of mobile one-way or two-way communications
28 service.
29 (9) "Person" has the meaning ascribed in s. 212.02.
30 (10) "Prepaid calling arrangement" means the
31 separately stated retail sale by advance payment of
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1 communications services that consist exclusively of telephone
2 calls originated by using an access number, authorization
3 code, or other means that may be manually, electronically, or
4 otherwise entered, and that are sold in predetermined units or
5 dollars of which the number declines with use in a known
6 amount.
7 (11) "Purchaser" means the person paying for or
8 obligated to pay for communications services.
9 (12) "Retail sale" means the sale of communications
10 services for any purpose other than for resale or for use as a
11 component part of or for integration into communications
12 services to be resold in the ordinary course of business.
13 However, any sale for resale must comply with s. 202.16(2) and
14 the rules adopted thereunder.
15 (13) "Sale" means the provision of communications
16 services for a consideration.
17 (14) "Sales price" means the total amount charged in
18 money or other consideration by a dealer for the sale of
19 communications services in this state, including any property
20 or other services that are part of the sale.
21 (a) The sales price of communications services shall
22 not be reduced by charges for any of the following:
23 1. Separately identified components of the charge or
24 expenses of the dealer, including, but not limited to, sales
25 taxes on goods or services purchased by the dealer, property
26 taxes, taxes measured by net income, and federal
27 universal-service fund fees.
28 2. The connection, movement, change, or termination of
29 communications services.
30 3. The detailed billing of communications services.
31
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1 4. The sale of directory listings in connection with a
2 communications service.
3 (b) The sales price of communications services does
4 not include charges for any of the following:
5 1. Any excise tax, sales tax, or similar tax levied by
6 the United States or any state or local government on the
7 purchase, sale, use, or consumption of any communications
8 service, including, but not limited to, any tax imposed under
9 this chapter or chapter 203 which is permitted or required to
10 be added to the sales price of such service, if the tax is
11 stated separately.
12 2. Any fee or assessment levied by the United States
13 or any state or local government, including, but not limited
14 to, regulatory fees and emergency telephone surcharges, which
15 is required to be added to the price of such service if the
16 fee or assessment is separately stated.
17 3. Local telephone service paid for by inserting coins
18 into coin-operated communications devices available to the
19 public.
20 4. The sale or recharge of a prepaid calling
21 arrangement.
22 5. The provision of air-to-ground communications
23 services, defined as a radio service provided to purchasers
24 while on board an aircraft.
25 6. A dealer's internal use of communications services
26 in connection with its business of providing communications
27 services.
28 7. Charges for property or other services that are not
29 part of the sale of communications services, if such charges
30 are stated separately from the charges for communications
31 services.
12
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1 (15) "Service address" means:
2 (a) In the case of cable services and direct-to-home
3 satellite services, the location where the customer receives
4 the services in this state.
5 (b) In the case of all other communications services,
6 the location of the communications equipment from which
7 communications services originate or at which communications
8 services are received by the customer. If the location of such
9 equipment cannot be determined as part of the billing process,
10 as in the case of mobile communications services, paging
11 systems, maritime systems, third-number and calling-card
12 calls, and similar services, the term means the location
13 determined by the dealer based on the customer's telephone
14 number, the customer's mailing address to which bills are sent
15 by the dealer, or another street address provided by the
16 customer. However, such address must be within the licensed
17 service area of the dealer. In the case of a communications
18 service paid through a credit or payment mechanism that does
19 not relate to a service address, such as a bank, travel,
20 debit, or credit card, the service address is the address of
21 the central office, as determined by the area code and the
22 first three digits of the seven-digit originating telephone
23 number.
24 (16) "Substitute communications system" means any
25 telephone system, or other system capable of providing
26 communications services, which a person purchases, installs,
27 rents, or leases for his or her own use to provide himself or
28 herself with services used as a substitute for communications
29 services provided by a dealer of communications services.
30 (17) "Unbundled network element" means a network
31 element, as defined in 47 U.S.C. s. 153(29), to which access
13
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1 is provided on an unbundled basis pursuant to 47 U.S.C. s.
2 251(c)(3).
3 Section 3. Effective January 1, 2002, section 202.12,
4 Florida Statutes, is created to read:
5 202.12 Sales of communications services.--The
6 Legislature finds that every person who engages in the
7 business of selling communications services at retail in this
8 state is exercising a taxable privilege. It is the intent of
9 the Legislature that the tax imposed by chapter 203 be
10 administered as provided in this chapter.
11 (1) For the exercise of such privilege, a tax is
12 levied on each taxable transaction, and the tax is due and
13 payable as follows:
14 (a) At the rate of 6.33 percent of the sales price of
15 the communications service, except for direct-to-home
16 satellite service, which:
17 1. Originates and terminates in this state, or
18 2. Originates or terminates in this state and is
19 charged to a service address in this state,
20
21 when sold at retail, computed on each taxable sale for the
22 purpose of remitting the tax due. The gross receipts tax
23 imposed by chapter 203 shall be collected on the same taxable
24 transactions and remitted with the tax imposed by this
25 paragraph. If no tax is imposed by this paragraph by reason of
26 s. 202.125(1), the tax imposed by chapter 203 shall
27 nevertheless be collected and remitted in the manner and at
28 the time prescribed for tax collections and remittances under
29 this chapter.
30 (b) At the rate set forth in paragraph (a) on the
31 actual cost of operating a substitute communications system,
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1 to be paid in accordance with s. 202.15. This paragraph does
2 not apply to the use by any dealer of its own communications
3 system to conduct a business of providing communications
4 services or any communications system operated by a county, a
5 municipality, the state, or any political subdivision of the
6 state. The gross receipts tax imposed by chapter 203 shall be
7 applied to the same costs, and remitted with the tax imposed
8 by this paragraph.
9 (c) At a rate to be computed by the Revenue Estimating
10 Conference and approved by the Legislature on the retail sales
11 price of any direct-to-home satellite service received in this
12 state. The rate computed by the Revenue Estimating Conference
13 shall be the sum of:
14 1. The rate set forth in paragraph (a); and
15 2. The weighted average, based on the aggregate
16 population in the respective taxing jurisdictions, of the rate
17 computed under s. 202.20(2)(a)1. for municipalities and
18 charter counties and the rate computed under such subparagraph
19 for all other counties.
20
21 The proceeds of the tax imposed under this paragraph shall be
22 accounted for and distributed in accordance with s. 202.18(2).
23 The gross recepts tax imposed by chapter 203 shall be
24 collected on the same taxable transactions and remitted with
25 the tax imposed by this paragraph.
26 (2) A dealer of taxable communications services shall
27 bill, collect, and remit the taxes on communications services
28 imposed pursuant to chapter 203 and this section at a combined
29 rate that is the sum of the rate of tax on communications
30 services prescribed in chapter 203 and the applicable rate of
31 tax prescribed in this section. Each dealer subject to the tax
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1 provided in paragraph (1)(b) shall also remit the taxes
2 imposed pursuant to chapter 203 and this section on a combined
3 basis. However, a dealer shall, in reporting each remittance
4 to the department, identify the portion thereof which consists
5 of taxes remitted pursuant to chapter 203. Return forms
6 prescribed by the department shall facilitate such reporting.
7 (3) Notwithstanding any law to the contrary, the
8 combined amount of taxes imposed under this section and s.
9 203.01(1)(a)2. shall not exceed $100,000 per calendar year on
10 charges to any person for interstate communications services
11 that originate outside this state and terminate within this
12 state. This subsection applies only to holders of a
13 direct-pay permit issued under this subsection. A refund may
14 not be given for taxes paid before receiving a direct-pay
15 permit. Upon application, the department may issue a
16 direct-pay permit to the purchaser of communications services
17 authorizing such purchaser to pay tax on such services
18 directly to the department. Any dealer of communications
19 services furnishing communications services to the holder of a
20 valid direct-pay permit is relieved of the obligation to
21 collect and remit the taxes imposed under this section and s.
22 203.01(1)(a)2. on such services. Tax payments and returns
23 pursuant to a direct-pay permit shall be monthly. As used in
24 this subsection, "person" means a single legal entity and does
25 not mean a group or combination of affiliated entities or
26 entities controlled by one person or group of persons.
27 Section 4. Effective January 1, 2002, section 202.125,
28 Florida Statutes, is created to read:
29 202.125 Sales of communications services; specified
30 exemptions.--
31
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1 (1) The separately stated sales price of
2 communications services sold to residential households is
3 exempt from the tax imposed by s. 202.12. This exemption shall
4 not apply to any residence that constitutes all or part of a
5 public lodging establishment as defined in chapter 509, any
6 mobile communications service, any cable service, or any
7 direct-to-home satellite service.
8 (2) The sale of communications services provided to
9 the Federal Government, any agency or instrumentality of the
10 Federal Government, or any entity that is exempt from state
11 taxes under federal law is exempt from the taxes imposed or
12 administered pursuant to ss. 202.12 and 202.19.
13 (3) The sale of communications services to the state
14 or any county, municipality, or political subdivision of the
15 state when payment is made directly to the dealer by the
16 governmental entity is exempt from the taxes imposed or
17 administered pursuant to ss. 202.12 and 202.19. This exemption
18 does not inure to any transaction otherwise taxable under this
19 chapter when payment is made by a government employee by any
20 means, including, but not limited to, cash, check, or credit
21 card even when that employee is subsequently reimbursed by the
22 governmental entity.
23 (4) The sale of communications services to a religious
24 or educational organization that is exempt from federal income
25 tax under s. 501(c)(3) of the Internal Revenue Code is exempt
26 from the taxes imposed or administered pursuant to ss. 202.12
27 and 202.19.
28 Section 5. Effective January 1, 2002, section 202.13,
29 Florida Statutes, is created to read:
30 202.13 Intent.--
31
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1 (1) If the operation or imposition of the taxes
2 imposed or administered under this chapter is declared
3 invalid, ineffective, inapplicable, unconstitutional, or void
4 for any reason, chapters 166, 203, 212, and 337, as such
5 chapters existed before January 1, 2000, shall fully apply to
6 the sale, use, or consumption of communications services. If
7 any exemption from the tax is declared invalid, ineffective,
8 inapplicable, unconstitutional, or void for any reason, such
9 declaration shall not affect the taxes imposed or administered
10 under this chapter, but such sale, use, or consumption shall
11 be subject to the taxes imposed under this chapter to the same
12 extent as if such exemption never existed.
13 (2) It is the intent of the Legislature to exempt from
14 the taxes imposed or administered pursuant to this chapter
15 only the communications services set forth in this chapter as
16 exempt from such taxes, to the extent that such exemptions are
17 in accordance with the constitutions of this state and of the
18 United States.
19 (3) The tax on dealers of communications services
20 authorized under this chapter, including the tax imposed by
21 local governments under ss. 202.19 and 202.20, shall supersede
22 the authority of local governments to levy franchise fees as
23 set out in 47 U.S.C. s. 542 without regard to the fact that
24 this is a tax of general applicability on all providers of
25 communications services.
26 Section 6. Effective January 1, 2002, section 202.14,
27 Florida Statutes, is created to read:
28 202.14 Credit against tax imposed.--To prevent actual
29 multistate taxation of communications services subject to tax
30 under this chapter, any taxpayer, upon proof that such
31 taxpayer has paid a tax legally imposed by another state or
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1 local jurisdiction in such other state with respect to such
2 services, shall be allowed a credit against the taxes imposed
3 under this chapter to the extent of the amount of tax paid in
4 the other state or local jurisdiction.
5 Section 7. Effective January 1, 2002, section 202.15,
6 Florida Statutes, is created to read:
7 202.15 Special rule for users of substitute
8 communications systems.--Any person who purchases, installs,
9 rents, or leases a substitute communications system must
10 register with the department and pay the taxes imposed or
11 administered pursuant to s. 202.12 annually pursuant to rules
12 prescribed by the department.
13 Section 8. Effective January 1, 2002, section 202.16,
14 Florida Statutes, is created to read:
15 202.16 Payment.--The taxes imposed or administered
16 under this chapter and chapter 203 shall be collected from all
17 dealers of taxable communications services on the sale at
18 retail in this state of communications services taxable under
19 this chapter and chapter 203. The full amount of the taxes on
20 a credit sale, installment sale, or sale made on any kind of
21 deferred payment plan is due at the moment of the transaction
22 in the same manner as a cash sale.
23 (1)(a) Except as otherwise provided in ss.
24 202.12(1)(b) and 202.15, the taxes collected under this
25 chapter and chapter 203, including any penalties or interest
26 attributable to the nonpayment of such taxes or for
27 noncompliance with this chapter or chapter 203, shall be paid
28 by the purchaser of the communications service and shall be
29 collected from such person by the dealer of communications
30 services.
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1 (b) Each dealer of communications services selling
2 communications services in this state shall collect the taxes
3 imposed under this chapter and chapter 203 from the purchaser
4 of such services, and such taxes must be stated separately
5 from all other charges on the bill or invoice.
6 (2) A sale of communications services that are used as
7 a component part of or integrated into a communications
8 service or prepaid calling arrangement for resale, including,
9 but not limited to, carrier-access charges, interconnection
10 charges paid by providers of mobile communication services or
11 other communication services, charges paid by cable service
12 providers for the transmission of video or other programming
13 by another dealer of communications services, charges for the
14 sale of unbundled network elements, and any other intercompany
15 charges for the use of facilities for providing communications
16 services for resale, must be made in compliance with the rules
17 of the department. Any person who makes a sale for resale
18 which is not in compliance with these rules is liable for any
19 tax, penalty, and interest due for failing to comply, to be
20 calculated pursuant to s. 202.28(2)(a).
21 (3) Notwithstanding the rate of tax on the sale of
22 communications services imposed pursuant to this chapter and
23 chapter 203, the department shall prescribe by rule the tax
24 amounts and brackets applicable to each taxable sale such that
25 the tax collected results in a tax rate no less than the tax
26 rate imposed pursuant to this chapter and chapter 203.
27 (4) Each purchaser of a communications service is
28 liable for the taxes imposed under this chapter and chapter
29 203. The purchaser's liability is not extinguished until the
30 tax has been paid to the department, except that proof of
31 payment of the tax to a dealer of communications services
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1 engaged in business in this state is sufficient to relieve the
2 purchaser from further liability for the tax.
3 Section 9. Effective January 1, 2002, section 202.17,
4 Florida Statutes, is created to read:
5 202.17 Registration.--
6 (1) Each person seeking to engage in business as a
7 dealer of communications services must file with the
8 department an application for a certificate of registration.
9 (2) A person may not engage in the business of
10 providing communications services without first obtaining a
11 certificate of registration. The failure or refusal to submit
12 an application by any person required to register, as required
13 by this section, is a misdemeanor of the first degree,
14 punishable as provided in s. 775.082 or s. 775.083. Any person
15 who fails or refuses to register shall pay an initial
16 registration fee of $100 in lieu of the $5 registration fee
17 prescribed under subsection (5). However, this fee increase
18 may be waived by the department if the failure is due to
19 reasonable cause.
20 (3)(a) An application for a certificate of
21 registration must be completed by the dealer of communications
22 services before engaging in business. The application for a
23 certificate of registration must contain the information
24 required by rule of the department.
25 (b) The department, upon receipt of a completed
26 application, shall grant to the applicant a certificate of
27 registration.
28 (4)(a) Any person who exclusively resells
29 communications services to a dealer of communications services
30 must submit an application for registration before engaging in
31 business in this state.
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1 (b) The department, upon receipt of a completed
2 application, shall grant to the applicant a certificate of
3 registration which states that the applicant is a reseller of
4 communications services.
5 (5) Each application required by paragraph (3)(a) or
6 paragraph (4)(a) must be accompanied by a registration fee of
7 $5, to be deposited in the General Revenue Fund, and must set
8 forth:
9 (a) The name under which the person will transact
10 business within this state.
11 (b) The street address of his or her principal office
12 or place of business within this state and of the location
13 where records are available for inspection.
14 (c) The name and complete residence address of the
15 owner or the names and residence addresses of the partners, if
16 the applicant is a partnership, or of the principal officers,
17 if the applicant is a corporation or association. If the
18 applicant is a corporation organized under the laws of another
19 state, territory, or country, he or she must also file with
20 the application a certified copy of the certificate or license
21 issued by the Department of State showing that the corporation
22 is authorized to transact business in this state.
23 (d) Any other data required by the department.
24 (6) Certificates of registration issued by the
25 department are not assignable.
26 (7) In addition to the certificate of registration,
27 the department shall provide to each newly registered dealer
28 an annual resale certificate that is valid for the remaining
29 portion of the year. The department shall provide to each
30 active dealer an annual resale certificate. As used in this
31 section, "active dealer" means a person who is registered with
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1 the department and who is required to file a return at least
2 once during each applicable reporting period.
3 (8) A certificate of registration issued by the
4 department may be revoked by the department or its designated
5 agent when a dealer fails to comply with this chapter or
6 chapter 203. Before revoking a dealer's certificate of
7 registration, the department must schedule an informal
8 conference at which the dealer may present evidence regarding
9 the department's intended revocation or enter into a
10 compliance agreement with the department. The department must
11 notify the dealer of its intended action and of the time,
12 place, and date of the scheduled informal conference by
13 written notification sent by United States mail to the
14 dealer's last known address of record furnished by the dealer
15 on a form prescribed by the department. The dealer must attend
16 the informal conference and present evidence refuting the
17 department's intended revocation or enter into a compliance
18 agreement with the department which resolves the dealer's
19 failure to comply with this chapter or chapter 203. The
20 department shall issue an administrative complaint under s.
21 120.60 if the dealer fails to attend the department's informal
22 conference, fails to enter into a compliance agreement with
23 the department resolving the dealer's noncompliance with this
24 chapter, or fails to comply with the executed compliance
25 agreement.
26 Section 10. Effective January 1, 2002, section 202.18,
27 Florida Statutes, is created to read:
28 202.18 Allocation and disposition of tax
29 proceeds.--The proceeds of the communications services taxes
30 remitted under this chapter shall be treated as follows:
31
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1 (1) The proceeds of the taxes remitted under s.
2 202.12(1)(a) and (b) shall be divided as follows:
3 (a) The portion of such proceeds which constitutes
4 gross receipts taxes, imposed at the rate prescribed in
5 chapter 203, shall be deposited as provided by law and in
6 accordance with s. 9, Art. XII of the State Constitution.
7 (b) The remaining portion shall be distributed
8 according to s. 212.20(6).
9 (2) The proceeds of the taxes remitted under s.
10 202.12(1)(c) shall be divided as follows:
11 (a) The portion of such proceeds which constitutes
12 gross receipts taxes, imposed at the rate prescribed in
13 chapter 203, shall be deposited as provided by law and in
14 accordance with s. 9, Art. XII of the State Constitution.
15 (b) The portion of such proceeds which constitutes the
16 tax imposed under s. 202.12(1)(a) shall be allocated to the
17 state and distributed pursuant to s. 212.20(6).
18 (c) The remaining portion of such proceeds shall be
19 allocated to the municipalities and counties in proportion to
20 the allocation of receipts from the half-cent sales tax under
21 s. 218.61 and the emergency distribution of such tax under s.
22 218.65. The department shall distribute the appropriate amount
23 to each municipality and county each month at the same time
24 that local communications services taxes are distributed
25 pursuant to subsection (3).
26 (3)(a) Notwithstanding any law to the contrary, the
27 proceeds of each local communications services tax levied by a
28 municipality or county pursuant to s. 202.19, less the
29 department's costs of administration, shall be transferred to
30 the Local Communications Services Tax Clearing Trust Fund and
31 held there to be distributed to such municipality or county.
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1 However, the proceeds of any communications services tax
2 imposed pursuant to s. 202.19(5) shall be deposited and
3 disbursed in accordance with ss. 212.054 and 212.055. For
4 purposes of this section, the proceeds of any tax levied by a
5 municipality, county, or school board under s. 202.19 are all
6 funds collected and received by the department pursuant to a
7 specific levy authorized by such section, including any
8 interest and penalties attributable to the tax levy.
9 (b) The amount deducted for the costs of
10 administration may not exceed 1 percent of the total revenue
11 generated for all municipalities, counties, and school boards
12 levying a tax pursuant to s. 202.19. The amount deducted for
13 the costs of administration shall be used only for those costs
14 that are attributable to the taxes imposed pursuant to s.
15 202.19. The total cost of administration shall be prorated
16 among those jurisdictions levying the tax on the basis of the
17 amount collected for a particular jurisdiction to the total
18 amount collected for all such jurisdictions.
19 (c)1. Except as otherwise provided in this paragraph,
20 proceeds of the taxes levied pursuant to s. 202.19, less
21 amounts deducted for costs of administration in accordance
22 with paragraph (b), shall be distributed monthly to the
23 appropriate jurisdictions. The proceeds of taxes imposed
24 pursuant to s. 202.19(5) shall be distributed in the same
25 manner as discretionary surtaxes are distributed, in
26 accordance with ss. 212.054 and 212.055.
27 2. The department shall make any adjustments to the
28 distributions pursuant to this paragraph which are necessary
29 to reflect the proper amounts due to individual jurisdictions.
30 Section 11. Effective January 1, 2002, section 202.19,
31 Florida Statutes, is created to read:
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1 202.19 Authorization to impose local communications
2 services tax.--
3 (1) The governing authority of each county and
4 municipality may, by ordinance, levy a discretionary
5 communications services tax.
6 (2) The rate of such tax shall be as follows:
7 (a) For municipalities and charter counties, the rate
8 shall be up to the maximum rate determined for municipalities
9 and charter counties in accordance with s. 202.20(2).
10 (b) For all other counties, the rate shall be up to
11 the maximum rate determined for other counties in accordance
12 with s. 202.20(2).
13
14 The rate imposed by any municipality or county shall be
15 expressed in increments of one-tenth of a percent and rounded
16 up to the nearest one-tenth percent.
17 (3)(a) The maximum rates established under subsection
18 (2) reflect the rates for communications services taxes
19 imposed under this chapter which are necessary for each
20 municipality or county to raise the maximum amount of revenues
21 which it was authorized to raise prior to July 1, 2000,
22 through the imposition of taxes, charges, and fees, but that
23 it is prohibited from imposing under s. 202.24, other than the
24 discretionary surtax authorized under s. 212.055. It is the
25 legislative intent that the maximum rates for charter counties
26 be calculated by treating them as having had the same
27 authority as municipalities to impose franchise fees on
28 recurring local telecommunication service revenues prior to
29 July 1, 2000. However, the Legislature recognizes that the
30 authority of charter counties to impose such fees is in
31 dispute, and the treatment provided in this section is not an
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1 expression of legislative intent that charter counties
2 actually do or do not possess such authority.
3 (b) The tax authorized under this section includes any
4 fee or other consideration to which the municipality or county
5 is otherwise entitled for granting permission to dealers of
6 communications services or providers of cable television
7 services, as authorized in 47 U.S.C. s. 542, to use or occupy
8 its roads or rights-of-way for the placement, construction,
9 and maintenance of poles, wires, and other fixtures used in
10 the provision of communications services.
11 (c) This subsection does not supersede or impair the
12 right, if any, of a municipality or county to require the
13 payment of consideration or to require the payment of
14 regulatory fees or assessments pursuant to s. 337.401 by
15 persons using or occupying its roads or rights-of-way in a
16 capacity other than that of a dealer of communications
17 services.
18 (4)(a) Except as otherwise provided in this section,
19 the tax imposed by any municipality shall be on all
20 communications services subject to tax under s. 202.12 which:
21 1. Originate or terminate in this state; and
22 2. Are charged to a service address in the
23 municipality.
24 (b) The tax imposed by any county under subsection (1)
25 shall be on all communications services subject to tax under
26 s. 202.12 which:
27 1. Originate or terminate in this state; and
28 2. Are charged to a service address in the
29 unincorporated area of the county.
30 (5) In addition to the communications services taxes
31 authorized by subsection (1), a discretionary surtax that a
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1 county or school board has levied under s. 212.055 is imposed
2 as a local communications services tax under this section, and
3 the rate shall be determined in accordance with s. 202.20(5).
4 Each such tax rate shall be applied, in addition to the other
5 tax rates applied under this chapter, to communications
6 services subject to tax under s. 202.12 which:
7 (a) Originate or terminate in this state; and
8 (b) Are charged to a service address in the county.
9 (6) Notwithstanding any other provision of this
10 section, a tax imposed under this section does not apply to
11 any direct-to-home satellite service.
12 (7) Any tax imposed by a municipality, school board,
13 or county under this section also applies to the actual cost
14 of operating a substitute communications system, to be paid in
15 accordance with s. 202.15. This subsection does not apply to
16 the use by any provider of its own communications system to
17 conduct a business of providing communications services or to
18 the use of any communications system operated by a county, a
19 municipality, the state, or any political subdivision of the
20 state.
21 (8) Notwithstanding any law to the contrary, a tax
22 imposed under this section shall not exceed $100,000 per
23 calendar year on charges to any person for interstate
24 communications services that originate outside this state and
25 terminate within this state. This subsection applies only to
26 holders of a direct-pay permit issued under this subsection. A
27 refund may not be given for taxes paid before receiving a
28 direct-pay permit. Upon application, the department may issue
29 a direct-pay permit to the purchaser of communications
30 services authorizing such purchaser to pay tax on such
31 services directly to the department. Any dealer of
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1 communications services furnishing communications services to
2 the holder of a valid direct-pay permit is relieved of the
3 obligation to collect and remit the tax on such services. Tax
4 payments and returns pursuant to a direct-pay permit shall be
5 monthly. As used in this subsection, "person" means a single
6 legal entity and does not mean a group or combination of
7 affiliated entities or entities controlled by one person or
8 group of persons.
9 (9) A municipality or county that imposes a tax under
10 this section may use the revenues raised by such tax for any
11 public purpose, including, but not limited to, pledging such
12 revenues for the repayment of current or future bonded
13 indebtedness.
14 (10) Notwithstanding any provision of law to the
15 contrary, the exemption set forth in s. 202.125(1) shall not
16 apply to a tax imposed by a municipality, school board, or
17 county pursuant to subsection (4) or subsection (5).
18 (11) To the extent that a provider of communications
19 services is required to pay a tax, charge, or other fee under
20 any franchise agreement or ordinance with respect to the
21 services or revenues that are also subject to the tax imposed
22 by this section, such provider is entitled to a credit against
23 the amount payable to the state pursuant to this section in
24 the amount of such tax, charge, or fee with respect to such
25 services or revenues.
26 Section 12. Section 202.20, Florida Statutes, is
27 created to read:
28 202.20 Establishment of initial and maximum rates of
29 local communications services taxes.--The initial rates and
30 maximum rates for the local communications services taxes
31
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1 imposed under s. 202.19(1) shall be determined in accordance
2 with this section.
3 (1)(a) On or before December 31, 2000, the Revenue
4 Estimating Conference shall compute for each municipality and
5 county the rate of local communications services tax which
6 would be required to be levied under s. 202.19(1) in order for
7 such local taxing jurisdiction to raise, through the
8 imposition of a local communications services tax, revenues
9 equal to the sum of:
10 1. The amount of revenues that were actually received
11 from the replaced revenue sources in the fiscal year ending
12 September 30, 2000;
13 2. An amount representing the reasonably anticipated
14 growth in such revenues over a period of 1 year, based on the
15 average growth of such revenues over the 5-year period
16 immediately preceding September 30, 2000; and
17 3. An amount representing the revenues from the
18 replaced revenue sources for the 1-month period which local
19 taxing jurisdictions will be required to forego as a result of
20 the repeal of the public service tax.
21 (b) The rates computed by the Revenue Estimating
22 Conference shall be presented to the Legislature for review
23 and approval during the 2001 Regular Session. The rates
24 approved by the Legislature under this section shall be
25 effective in the respective local taxing jurisdictions on
26 January 1, 2002, without any action being taken by the
27 governing authority or voters of such local taxing
28 jurisdictions. The rate computed and approved pursuant to this
29 subsection shall be reduced on January 1, 2003, by that
30 portion of the rate which was necessary to recoup the 1 month
31 of foregone revenues addressed in subparagraph (a)3.
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1 (c) With respect to any local taxing jurisdiction, if,
2 for the periods ending March 31, 2002, June 30, 2002,
3 September 30, 2002, or December 31, 2002, the revenues
4 received by that local government from the local
5 communications services tax imposed under this section are
6 less than the revenues received from the replaced revenue
7 sources for the corresponding 2001 period; plus reasonably
8 anticipated growth in such revenues over the preceding 1-year
9 period, based on the average growth of such revenues over the
10 immediately preceding 5-year period; plus an amount
11 representing the revenues from the replaced revenue sources
12 for the 1-month period that the local taxing jurisdiction was
13 required to forego as a result of the repeal of the public
14 service tax, the governing authority may adjust the rate of
15 the local communications services tax upward to the extent
16 necessary to generate the entire shortfall in revenues within
17 1 year after the rate adjustment and by an amount necessary to
18 generate the expected amount of revenue on an ongoing basis.
19 The adjustment may be made by emergency ordinance and may be
20 made notwithstanding the maximum rate established under
21 subsection (2) and notwithstanding any schedules or timeframes
22 or any other limitations contained in this section. The
23 emergency ordinance shall specify an effective date for the
24 adjusted rate, which shall be no less than 90 days after the
25 date of adoption of the ordinance. At the end of that year,
26 the local governing authority shall, as soon as is consistent
27 with s. 202.21, reduce the rate by that portion of the
28 emergency rate which was necessary to recoup the amount of
29 revenues not received prior to the implementation of the
30 emergency rate.
31
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1 (2)(a) On or before December 31, 2000, the Revenue
2 Estimating Conference shall compute, in accordance with this
3 paragraph, the maximum rates at which local taxing
4 jurisdictions shall be permitted to impose local
5 communications services taxes under s. 202.19(1).
6 1. A single maximum rate shall apply to all
7 municipalities and charter counties and another single maximum
8 rate shall apply to all other counties.
9 2. Each respective maximum rate shall reflect the
10 greatest possible amount of revenues which could have been
11 generated from the replaced revenue sources, assuming that
12 each local taxing jurisdiction had imposed every replaced
13 revenue source in the manner and at the rate that would have
14 produced the greatest amount of revenues.
15 (b) The rates computed by the Revenue Estimating
16 Conference shall be presented to the Legislature for review
17 and approval during the 2001 Regular Session. The rates
18 approved by the Legislature pursuant to this subsection shall
19 be the maximum rates for purposes of s. 202.19(1).
20 (3) Each person who provides communications services
21 and each local taxing jurisdiction shall furnish to the
22 Department of Revenue the information necessary for the
23 Revenue Estimating Conference to make the computations
24 required by subsections (1), (2), and (5). All information
25 furnished to the department under this subsection shall be
26 available to all local taxing jurisdictions. The department
27 shall provide technical assistance to the Revenue Estimating
28 Conference and compile and analyze the information in the
29 manner requested by the Revenue Estimating Conference.
30 (4) Except as otherwise provided in this subsection,
31 "replaced revenue sources" as used in this section means the
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1 following taxes, charges, fees, or other impositions to the
2 extent that the respective local taxing jurisdictions were
3 authorized to impose them prior to July 1, 2000.
4 (a) With respect to municipalities and charter
5 counties and the taxes authorized by s. 202.19(1):
6 1. The public service tax on telecommunications
7 authorized by s. 166.231(9).
8 2. Franchise fees on cable service providers as
9 authorized by 47 U.S.C. s. 542.
10 3. The public service tax on prepaid calling
11 arrangements.
12 4. Franchise fees on dealers of communications
13 services which use the public roads or rights-of-way, up to
14 the limit set forth in s. 337.401. For purposes of calculating
15 rates under this section, it is the legislative intent that
16 charter counties be treated as having had the same authority
17 as municipalities to impose franchise fees on recurring local
18 telecommunication service revenues prior to July 1, 2000.
19 However, the Legislature recognizes that the authority of
20 charter counties to impose such fees is in dispute, and the
21 treatment provided in this section is not an expression of
22 legislative intent that charter counties actually do or do not
23 possess such authority.
24 5. Actual permit fees relating to placing or
25 maintaining facilities in or on public roads or rights-of-way,
26 collected from providers of long-distance, cable, and mobile
27 communications services for the fiscal year ending September
28 30, 2000; however, if a municipality or charter county elects
29 to charge permit fees pursuant to s. 337.401(3)(c)1.a., such
30 fees shall not be included as a replaced revenue source.
31
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1 (b) With respect to all other counties and the taxes
2 authorized in s. 202.19(1), franchise fees on cable service
3 providers as authorized by 47 U.S.C. s. 542.
4 (5) For any county or school board that levies a
5 discretionary surtax under s. 212.055, the rate of such tax
6 shall be multiplied by a factor to determine the applicable
7 rate of tax under s. 202.19(5). The Revenue Estimating
8 Conference shall compute the factor on or before December 31,
9 2000. The factor shall be calculated such that any rate
10 applied under s. 202.19(5) will produce substantially the same
11 tax revenues as the corresponding rate levied on
12 telecommunication services under s. 212.055. The factor shall
13 be calculated to three decimal places, and the tax rates
14 calculated by applying the factor for purposes of s. 202.19(5)
15 shall be rounded up to the nearest one-tenth percent. The
16 factor shall be presented to the Legislature for review and
17 approval during the 2001 Regular Session.
18 (6) For purposes of calculating the appropriate value
19 of the replaced revenue under (4)(a)2. and (4)(b), and in
20 conjunction with the study required by this act, the Revenue
21 Estimating Conference may include in its computation any
22 adjustment necessary to include the value of any in-kind
23 requirements and contributions for, or in support of, the use
24 or construction of public, educational, or governmental access
25 facilities authorized under federal law.
26 (7)(a) The provisions of this subsection shall apply
27 only with respect to the initial and maximum tax rates of a
28 local taxing jurisdiction which on January 1, 2002, is
29 entitled to receive from any dealer of communications services
30 fees in excess of the applicable limitation set forth in s.
31 337.401, as such section existed prior to the effective date
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1 of this section, pursuant to an agreement with such dealer of
2 communications services in effect on such date.
3 (b) Immediately upon the expiration of an agreement
4 described in paragraph (a), the rate determined under
5 subsection (1), as it applies to such local taxing
6 jurisdiction, shall automatically be reduced by the portion of
7 such rates representing the difference between the fees
8 actually received by the taxing jurisdiction pursuant to the
9 agreement described in paragraph (a) for the fiscal year
10 ending September 30, 2000, and the fees that such jurisdiction
11 would have received for such period under the applicable
12 limitation set forth in s. 337.401, as such section existed
13 prior to the effective date of this section.
14 Section 13. Effective January 1, 2002, section 202.21,
15 Florida Statutes, is created to read:
16 202.21 Effective dates; procedures for informing
17 dealers of communications services of tax levies and rate
18 changes.--Any adoption, repeal, or change in the rate of a
19 local communications services tax imposed under s. 202.19 is
20 effective with respect to taxable services included on bills
21 that are dated on or after the January 1 subsequent to such
22 adoption, repeal, or change. A municipality or county
23 adopting, repealing, or changing the rate of such tax must
24 notify the department of the adoption, repeal, or change by
25 September 1 immediately preceding such January 1. Notification
26 must be furnished on a form prescribed by the department and
27 must specify the rate of tax; the effective date of the
28 adoption, repeal, or change thereof; and the name, mailing
29 address, and telephone number of a person designated by the
30 municipality or county to respond to inquiries concerning the
31 tax. The department shall provide notice of such adoption,
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1 repeal, or change to all affected dealers of communications
2 services at least 90 days before the effective date of the
3 tax. Any local government that adjusts the rate of its local
4 communications services tax by emergency ordinance pursuant to
5 s. 202.20(1)(c) shall notify the department of the new tax
6 rate immediately upon its adoption. The department shall
7 provide written notice of the adoption of the new rate to all
8 affected dealers within 30 days after receiving such notice.
9 In any notice to providers or publication of local tax rates
10 for purposes of this chapter, the department shall express the
11 rate for a municipality or charter county as the sum of the
12 tax rates levied within such jurisdiction pursuant to s.
13 202.19(2)(a) and (5), and shall express the rate for any other
14 county as the sum of the tax rates levied pursuant to s.
15 202.19(2)(b) and (5). The department is not liable for any
16 loss of or decrease in revenue by reason of any error,
17 omission, or untimely action that results in the nonpayment of
18 a tax imposed under s. 202.19.
19 Section 14. Effective January 1, 2002, section 202.22,
20 Florida Statutes, is created to read:
21 202.22 Determination of local tax situs.--
22 (1) A dealer of communications services who is
23 obligated to collect and remit a local communications services
24 tax imposed under s. 202.19 shall be held harmless from any
25 liability, including tax, interest, and penalties, which would
26 otherwise be due solely as a result of an assignment of a
27 service address to an incorrect local taxing jurisdiction, if
28 the dealer of communications services exercises due diligence
29 in applying one or more of the following methods for
30 determining the local taxing jurisdiction in which a service
31 address is located:
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1 (a) Employing an electronic database provided by the
2 department under subsection (2).
3 (b) Employing a database developed by the dealer or
4 supplied by a vendor which has been certified by the
5 department under subsection (3).
6 (c) Employing enhanced zip codes to assign each street
7 address, address range, post office box, or post office box
8 range in the dealer's service area to a specific local taxing
9 jurisdiction. If an enhanced zip code overlaps boundaries of
10 municipalities or counties, or if an enhanced zip code cannot
11 be assigned to the service address because the service address
12 is in a rural area or a location without postal delivery, the
13 dealer of communications services or its database vendor shall
14 assign the affected service addresses to one specific local
15 taxing jurisdiction within such zip code based on a reasonable
16 methodology. A methodology satisfies this paragraph if the
17 information used to assign service addresses is obtained by
18 the dealer or its database vendor from:
19 1. A database provided by the department;
20 2. A database certified by the department under
21 subsection (3);
22 3. Responsible representatives of the relevant local
23 taxing jurisdictions; or
24 4. The United States Census Bureau or the United
25 States Postal Service.
26 (d) Employing a database of street addresses or other
27 assignments that does not meet the requirements of paragraphs
28 (a)-(c), but meets the criteria set forth in paragraph (3)(a)
29 at the time of audit by the department.
30 (2)(a) The department shall, subject to legislative
31 appropriation, create as soon as practical and feasible, and
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1 thereafter maintain, an electronic database that gives due and
2 proper regard to any format that is approved by the American
3 National Standards Institute's Accredited Standards Committee
4 X12 and that designates for each street address, address
5 range, post office box, or post office box range in the state,
6 including any multiple postal street addresses applicable to
7 one street location, the local taxing jurisdiction in which
8 the street address, address range, post office box, or post
9 office box range is located and the appropriate code for each
10 such local taxing jurisdiction, identified by one nationwide
11 standard numeric code. The nationwide standard numeric code
12 must contain the same number of numeric digits, and each
13 digit, or combination of digits, must refer to the same level
14 of taxing jurisdiction throughout the United States using a
15 format similar to FIPS 55-3 or other appropriate standard
16 approved by the Federation of Tax Administrators and the
17 Multistate Tax Commission. Each address or address range or
18 post office box or post office box range must be provided in
19 standard postal format, including the street number, street
20 number range, street name, post office box number, post office
21 box range, and zip code. The department shall provide notice
22 of the availability of the database, and any subsequent
23 revision thereof, by publication in the Florida Administrative
24 Weekly.
25 (b)1. Each local taxing jurisdiction shall furnish to
26 the department all information needed to create and update the
27 electronic database, including changes in service addresses,
28 annexations, incorporations, reorganizations, and any other
29 changes in jurisdictional boundaries. The information
30 furnished to the department must specify an effective date,
31 which must be the next ensuing January 1 or July 1, and such
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1 information must be furnished to the department at least 120
2 days prior to the effective date. However, the requirement
3 that counties submit information pursuant to this paragraph
4 shall be subject to appropriation.
5 2. The department shall update the electronic database
6 in accordance with the information furnished by local taxing
7 jurisdictions under subparagraph 1. Each update must specify
8 the effective date as the next ensuing January 1 or July 1 and
9 must be posted by the department on a website not less than 90
10 days prior to the effective date. The department shall also
11 furnish the update on magnetic or electronic media to any
12 dealer of communications services or vendor who requests the
13 update on such media. However, the department may collect a
14 fee from the dealer of communications services which does not
15 exceed the actual cost of furnishing the update on magnetic or
16 electronic media.
17 3. Each update must identify the additions, deletions,
18 and other changes to the preceding version of the database.
19 Each dealer of communications services shall collect and remit
20 local communications services taxes imposed under this chapter
21 only for those service addresses that are contained in the
22 database and for which all of the elements required by this
23 subsection are included in the database.
24 (3) For purposes of this section, a database must be
25 certified by the department pursuant to rules that implement
26 the following criteria and procedures:
27 (a) The database must assign street addresses, address
28 ranges, post office boxes, or post office box ranges to the
29 proper jurisdiction with an overall accuracy rate of 95
30 percent at a 95 percent level of confidence, as determined
31 through a statistically reliable sample. The accuracy must be
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1 measured based on the entire state or, if the service area of
2 the dealer does not encompass the entire state, based on the
3 dealer's entire service area.
4 (b) Upon receipt of an application for certification
5 or recertification of a database, the department shall examine
6 the application and, within 90 days after receipt, notify the
7 applicant of any apparent errors or omissions and request any
8 additional information, conduct any inspection, or perform any
9 testing determined necessary. The applicant shall designate an
10 individual responsible for providing access to all records,
11 facilities, and processes the department determines are
12 reasonably necessary to review and make a determination
13 regarding the application. Such access must be provided within
14 10 working days after notification.
15 (c) The application must be in the form prescribed by
16 rule and must include the applicant's name, federal employer
17 identification number, mailing address, business address, and
18 any other information required by the department. The
19 application must identify, among other elements required by
20 the department, the applicant's proposal for testing the
21 database.
22 (d) Each application for certification must be
23 approved or denied upon written notice within 180 days after
24 receipt of a completed application. The notice must specify
25 the grounds for denial, inform the applicant of any remedy
26 that is available, and indicate the procedure that must be
27 followed. Filing of a petition under chapter 120 does not
28 preclude the department from certifying the database upon a
29 demonstration that the deficiencies have been corrected.
30 (e) Certification or recertification of a database
31 under this subsection is effective from the date of the
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1 department's notice approving the application until the
2 expiration of 3 or 4 years following such date, as set forth
3 in the notice, except as provided in paragraph (f).
4 (f) An application for recertification of a database
5 must be received by the department not more than 3 years after
6 the date of any prior certification. The application and
7 procedures relating thereto shall be governed by this
8 subsection, except as otherwise provided in this paragraph.
9 When an application for recertification has been timely
10 submitted, the existing certification shall not expire but
11 shall remain effective until the application has received
12 final action by the department, or if the application is
13 denied, until the denial is no longer subject to
14 administrative or judicial review or such later date as may be
15 fixed by order of the reviewing court.
16 (4)(a) As used in this section, "due diligence" means
17 the care and attention that is expected from, and ordinarily
18 exercised by, a reasonable and prudent person under the
19 circumstances.
20 (b) Notwithstanding any law to the contrary, a dealer
21 of communications services is exercising due diligence in
22 applying one or more of the methods set forth in subsection
23 (1) if the dealer:
24 1. Expends reasonable resources to accurately and
25 reliably implement such method. However, the employment of
26 enhanced zip codes pursuant to paragraph (1)(c) satisfies the
27 requirements of this subparagraph; and
28 2. Maintains adequate internal controls in assigning
29 street addresses, address ranges, post offices boxes, and post
30 office box ranges to taxing jurisdictions. Internal controls
31 are adequate if the dealer of communications services:
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1 a. Maintains and follows procedures to obtain and
2 implement periodic and consistent updates to the database; and
3 b. Corrects errors in the assignments of service
4 addresses to local taxing jurisdictions within 120 days after
5 the dealer discovers such errors.
6 (5) If a dealer of communications services does not
7 use one or more of the methods specified in subsection (1) for
8 determining the local taxing jurisdiction in which a service
9 address is located, the dealer of communications services may
10 be held liable to the department for any tax, including
11 interest and penalties, which is due as a result of assigning
12 the service address to an incorrect local taxing jurisdiction.
13 However, the dealer of communications services is not liable
14 for any tax, interest, or penalty to the extent that such
15 amount was collected and remitted by the dealer of
16 communications services with respect to a tax imposed by
17 another local taxing jurisdiction. Upon determining that an
18 amount was collected and remitted by a dealer of
19 communications services with respect to a tax imposed by
20 another local taxing jurisdiction, the department shall adjust
21 the respective amounts of the proceeds paid to each such
22 taxing jurisdiction under s. 202.18 in the month immediately
23 following such determination.
24 (6)(a) Pursuant to rules adopted by the department,
25 each dealer of communications services must notify the
26 department of the methods it intends to employ for determining
27 the local taxing jurisdiction in which service addresses are
28 located.
29 (b) Notwithstanding s. 202.28, if a dealer of
30 communications services employs a method of assigning service
31 addresses other than as set forth in paragraph (1)(a), (b), or
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1 (c), the deduction allowed to the dealer of communications
2 services as compensation under s. 202.28 shall be 0.25 percent
3 of the tax due and accounted for and remitted to the
4 department.
5 (7) As used in this section, "enhanced zip code" means
6 a United States postal zip code of 9 or more digits.
7 Section 15. Effective January 1, 2002, section 202.23,
8 Florida Statutes, is created to read:
9 202.23 Procedure on purchaser's request for refund or
10 credit of communications services taxes.--
11 (1) Notwithstanding any other law, a purchaser seeking
12 a refund of or credit for a tax collected by a dealer under
13 this chapter must, within 3 years following collection of the
14 tax from the purchaser, submit a written request for the
15 refund or credit to the dealer in accordance with this
16 section. A request shall not be granted unless the amount
17 claimed was collected from the purchaser and was not due to
18 the state or to any local taxing jurisdiction.
19 (a) A request for a refund or credit may be submitted
20 under this section if:
21 1. The dealer charged and collected the tax with
22 respect to a transaction or charge that was not subject to the
23 communications services taxes imposed by this chapter or
24 chapter 203, or applied a tax rate in excess of the lawful
25 rate.
26 2. The purchaser or the transaction was exempt or
27 immune from such taxes.
28 3. The purchaser was assigned to the incorrect local
29 taxing jurisdiction for purposes of the taxes authorized in s.
30 202.19.
31 4. The purchaser paid the tax in error.
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1 (b) A purchaser's request for a refund or credit must
2 be signed by the purchaser and is complete for purposes of
3 this section and the limitation period if it states the
4 purchaser's name, mailing address, account number, the tax
5 amounts claimed, the specific months during which those
6 amounts were collected, and the reason for the purchaser's
7 claim that such amounts were not due to the state or to any
8 local taxing jurisdiction. If the reason for the request is an
9 exemption or immunity or a claim that the purchaser was
10 assigned to the incorrect local taxing jurisdiction for
11 purposes of a tax imposed under s. 202.19, a completed request
12 must also include any additional information the department
13 prescribes by rule to facilitate verification of the
14 purchaser's eligibility for exemption or immunity or to
15 facilitate verification of the purchaser's service address.
16 Upon receipt of a completed request, the dealer shall
17 ascertain whether it collected the tax claimed from the
18 purchaser and whether the request is timely.
19 (c) Within 30 days following receipt of a completed
20 request, the dealer shall determine whether any portion of the
21 tax was collected solely as the result of an error of the
22 dealer or the purchaser or solely as the result of a
23 combination of errors of the dealer and the purchaser. The
24 dealer shall refund any such amount or credit the purchaser's
25 account for such amount within 45 days following such
26 determination.
27 (d) With respect to all amounts timely claimed which
28 the dealer collected from the purchaser and which the dealer
29 has not determined to be subject to refund or credit pursuant
30 to paragraph (c), the dealer shall, within 30 days following
31 receipt of the purchaser's completed request for refund or
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1 credit, provide a copy of the request to the department. If
2 the reason for the purchaser's request is described in
3 subparagraph (a)1. or 3., the dealer shall contemporaneously
4 furnish to the department an identification of the charges
5 included in the taxable measure and the tax rates applied to
6 the charges, or a written identification of each local
7 jurisdiction to which the purchaser was assigned and the
8 amounts collected from the purchaser and reported for each
9 such jurisdiction, as the case may be. If a purchaser's
10 request submitted to the department under this section sets
11 forth another reason for claiming a refund or credit, the
12 dealer shall furnish to the department information to
13 facilitate the department's evaluation of the request.
14 (e) Within 90 days following receipt of the
15 purchaser's request from the dealer, the department shall
16 determine whether the tax was correctly applied and notify the
17 dealer in writing of its determination. If the department
18 determines that the tax was incorrectly applied, its
19 notification to the dealer must inform the dealer how the tax
20 should have been applied, including, in the case of an
21 incorrect assignment of the purchaser to a local taxing
22 jurisdiction, an identification of the correct local taxing
23 jurisdiction and the applicable rates of tax levied by the
24 local jurisdiction. The department's notification must also
25 inform the dealer of any portion of the amount claimed which
26 was not due to the state or to any local taxing jurisdiction
27 and approve the refund or credit of such amount to the
28 purchaser. Within 45 days following receipt of notification
29 from the department, the dealer shall issue a refund or credit
30 the purchaser's account for any such amount. The dealer's
31 obligation to issue a refund or credit the purchaser's account
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1 is limited to amounts approved in accordance with this
2 section.
3 (f) The dealer shall issue a written response advising
4 the purchaser of the disposition of the purchaser's request.
5 The response must specify any portion of the tax claimed which
6 is being refunded or credited to the purchaser's account and
7 the reason for denial of any portion of the request. The
8 request may be denied if the request was untimely or
9 incomplete, the dealer did not collect the tax claimed, the
10 purchaser previously received a refund of or credit for the
11 same tax, the tax collected was due, or the department failed
12 to furnish the notification required by paragraph (e). With
13 respect to any portion of the request which is granted, the
14 response must be issued at the time of the refund or credit to
15 the purchaser's account. With respect to any portion of the
16 request which is denied, the response must be issued within 45
17 days following the dealer's receipt of the request if the
18 request was not submitted to the department pursuant to
19 paragraph (d), within 45 days following the dealer's receipt
20 of the department's notification pursuant to paragraph (e) if
21 the denial is based on the department's notification, or
22 within 135 days following submission of the request to the
23 department if the dealer has not received the department's
24 notification.
25 (g) The dealer may deduct from any refund or credit
26 under this section any amount owed by the purchaser to the
27 dealer which is delinquent.
28 (2) This section provides the sole and exclusive
29 procedure and remedy for a purchaser who claims that a dealer
30 has collected communications services taxes imposed or
31 administered under this chapter which were not due. An action
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1 that arises as a result of the claimed collection of taxes
2 that were not due may not be commenced or maintained by or on
3 behalf of a purchaser against a dealer, a municipality, a
4 county, or the state unless the purchaser pleads and proves
5 that the purchaser has exhausted the procedures in subsection
6 (1) and that the defendant has failed to comply with
7 subsection (1). However, no determination by a dealer under
8 paragraph (1)(c) shall be deemed a failure to comply with
9 subsection (1) if the dealer has complied with the obligations
10 imposed on the dealer by paragraphs (1)(d), (e), and (f). In
11 any such action, it is a complete defense that the dealer, a
12 municipality, a county, or the state has refunded the taxes
13 claimed or credited the purchaser's account. In such an action
14 against a dealer, it is also a complete defense that, in
15 collecting the tax, the dealer used one or more of the methods
16 set forth in s. 202.22 for assigning the purchaser to a local
17 taxing jurisdiction. Such action is barred unless it is
18 commenced within 180 days following the date of the dealer's
19 written response under paragraph (1)(f), or within 1 year
20 following submission of the purchaser's request to the dealer
21 if the dealer failed to issue a timely written response. The
22 relief available to a purchaser as a result of collection of
23 communications services taxes that were not due is limited to
24 a refund of or credit for such taxes.
25 (3) A dealer who remitted a tax amount to the
26 department for which the dealer subsequently issued a refund
27 or credit to the purchaser pursuant to this section, and a
28 dealer who has otherwise remitted to the department a tax
29 amount with respect to communications services which was not
30 due under this chapter or chapter 203, is entitled to a refund
31 or credit of such amount from the department. The dealer may
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1 apply for a refund within the period prescribed in s. 215.26,
2 or may take a credit against a tax remittance otherwise
3 required under this chapter within 3 years after the date that
4 the amount for which credit is claimed was remitted to the
5 department, or within 60 days following such provider's
6 issuance of a refund or credit to the purchaser for such
7 amount, whichever occurs later. In addition, s. 213.34 applies
8 to the offset of overpayments against deficiencies in audits
9 of dealers and purchasers.
10 (4) A dealer who takes a credit on a subsequent
11 return, as provided in subsection (3), for a tax imposed
12 pursuant to s. 202.19 which has been collected and remitted by
13 the dealer must indicate such credit in the portion of the
14 return applicable to the local taxing jurisdiction for which
15 the tax was originally reported.
16 (5) A dealer who has collected and remitted amounts
17 that were not due, as determined by the department under
18 paragraph (1)(e), who has issued a refund or credit to the
19 purchaser for such amounts, and who takes a credit or receives
20 a refund from the department for such amounts as provided in
21 subsection (3) is not subject to assessment for any of the tax
22 that was refunded or credited or for any interest or penalty
23 with respect to the tax. In addition, a dealer who modifies
24 his or her tax compliance practices to conform to a department
25 determination under paragraph (1)(e) is not subject to
26 assessment as a result of such modification, absent a
27 subsequent change in law or update to a database pursuant to
28 s. 202.22.
29 (6) A purchaser who seeks a refund of communications
30 services taxes that the purchaser paid directly to the
31
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1 department must apply to the department for such refund in
2 accordance with s. 215.26 and may not apply to the dealer.
3 (7) The rights to a refund or credit provided in this
4 section for purchasers and dealers may be assigned.
5 Section 16. Effective January 1, 2002, section 202.24,
6 Florida Statutes, is created to read:
7 202.24 Limitations on local taxes and fees imposed on
8 dealers of communications services.--
9 (1) The authority of a public body to require taxes,
10 fees, charges, or other impositions from dealers of
11 communications services for occupying its roads and
12 rights-of-way is specifically preempted by the state because
13 of unique circumstances applicable to communications services
14 dealers. Communications services may be provided by certain
15 dealers of communications services in a manner that requires
16 the use of public roads or rights-of-way while similar
17 communications services may be provided by other dealers of
18 communications services in a manner that does not require the
19 use of public roads or rights-of-way. Although similar
20 communications services may be provided by different means,
21 the state seeks to treat dealers of communications services in
22 a nondiscriminatory and competitively neutral manner.
23 (2)(a) Except as provided in paragraph (c), each
24 public body is prohibited from:
25 1. Levying on or collecting from dealers or purchasers
26 of communications services any tax, charge, fee, or other
27 imposition on or with respect to the provision or purchase of
28 communications services.
29 2. Requiring any dealer of communications services to
30 enter into or extend the term of a franchise or other
31
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1 agreement that requires the payment of a tax, charge, fee, or
2 other imposition.
3 3. Adopting or enforcing any provision of any
4 ordinance or agreement to the extent that such provision
5 obligates a dealer of communications services to charge,
6 collect, or pay to the public body a tax, charge, fee, or
7 other imposition.
8
9 Each municipality and county retains authority to negotiate
10 all terms and conditions of a cable service franchise allowed
11 by federal and state law except those terms and conditions
12 related to franchise fees and the definition of gross revenues
13 or other definitions or methodologies related to the payment
14 or assessment of franchise fees on providers of cable
15 services.
16 (b) For purposes of this subsection, a tax, charge,
17 fee, or other imposition includes any amount or in-kind
18 payment of property or services which is required by ordinance
19 or agreement to be paid or furnished to a public body by or
20 through a dealer of communications services in its capacity as
21 a dealer of communications services, regardless of whether
22 such amount or in-kind payment of property or services is:
23 1. Designated as a sales tax, excise tax, subscriber
24 charge, franchise fee, user fee, privilege fee, occupancy fee,
25 rental fee, license fee, pole fee, tower fee, base-station
26 fee, or other tax or fee;
27 2. Measured by the amounts charged or received for
28 services, regardless of whether such amount is permitted or
29 required to be separately stated on the customer's bill, by
30 the type or amount of equipment or facilities deployed, or by
31 other means; or
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1 3. Intended as compensation for the use of public
2 roads or rights-of-way, for the right to conduct business, or
3 for other purposes.
4 (c) This subsection does not apply to:
5 1. Local communications services taxes levied under
6 this chapter.
7 2. Ad valorem taxes levied pursuant to chapter 200.
8 3. Occupational license taxes levied under chapter
9 205.
10 4. "911" service charges levied under chapter 365.
11 5. Amounts charged for the rental or other use of
12 property owned by a public body which is not in the public
13 rights-of-way to a dealer of communications services for any
14 purpose, including, but not limited to, the placement or
15 attachment of equipment used in the provision of
16 communications services.
17 6. Permit fees of general applicability which are not
18 related to placing or maintaining facilities in or on public
19 roads or rights-of-way.
20 7. Permit fees related to placing or maintaining
21 facilities in or on public roads or rights-of-way pursuant to
22 s. 337.401.
23 8. Any in-kind requirements or contributions for, or
24 in support of the use or construction of, public, educational,
25 or governmental access facilities authorized under federal law
26 and imposed on providers of cable service pursuant to any
27 ordinance or agreement. Nothing in this subparagraph shall
28 prohibit the ability of providers of cable service to recover
29 such expenses as allowed under federal law. This subparagraph
30 shall be reviewed by the Legislature during the 2001
31
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1 legislative session in conjunction with the study required by
2 this act.
3 9. Special assessments and impact fees.
4 10. Pole attachment fees that are charged by a local
5 government for attachments to utility poles owned by the local
6 government.
7 11. Utility service fees or other similar user fees
8 for utility services.
9 12. Any other generally applicable tax, fee, charge,
10 or imposition authorized by general law on the effective date
11 of this section which is not specifically prohibited by this
12 subsection or included as a replaced revenue source in s.
13 202.20.
14 (3) As used in this section, "public body" has the
15 meaning ascribed in s. 1.01(8), and includes, without
16 limitation, every division, agency, and instrumentality
17 thereof; however, the term does not include the state or any
18 branch of state government.
19 Section 17. Effective January 1, 2002, section 202.25,
20 Florida Statutes, is created to read:
21 202.25 Jurisdiction; dealers not qualified to do
22 business in this state.--
23 (1) All suits brought by the department against any
24 dealer for any violation of this chapter for the purpose of
25 collecting any tax due from the dealer, including garnishment
26 proceedings, regardless of the amount, must be brought in the
27 circuit court of this state having jurisdiction of the subject
28 matter.
29 (2) Each dealer who is not qualified to do business in
30 this state shall designate with the department an agent within
31 this state for service of process to enforce this chapter. If
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1 a dealer fails to designate such an agent, the Secretary of
2 State or any agent or employee of the dealer within this state
3 constitutes the agent for the service of such process.
4 Section 18. Section 202.26, Florida Statutes, is
5 created to read:
6 202.26 Department powers.--
7 (1) The department shall administer and enforce the
8 assessment and collection of the taxes, interest, and
9 penalties collected under or imposed by this chapter.
10 (2) The provisions of chapter 213 shall, as far as
11 lawful and practicable, be applicable to the taxes imposed and
12 administered under this chapter and to the collection thereof
13 as if fully set out in this chapter. However, no provision of
14 chapter 213 shall apply if it conflicts with any provision of
15 this chapter.
16 (3) To administer the tax imposed by this chapter, the
17 department may adopt rules relating to:
18 (a) The filing of returns and remittance of tax,
19 including provisions concerning electronic funds transfer and
20 electronic data interchange.
21 (b) The determination of customer service addresses.
22 (c) The interpretation or definition of any exemptions
23 or exclusions from taxation granted by law.
24 (d) Procedures for handling sales for resale and for
25 determining the taxable status of discounts and rebates.
26 (e) Methods for granting self-accrual authority to
27 taxpayers.
28 (f) The records and methods necessary for a dealer to
29 demonstrate the exercise of due diligence as defined by s.
30 202.22(4)(b).
31
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1 (g) The creation of the database described in s.
2 202.22(2) and the certification and recertification of the
3 databases as described in s. 202.22(3).
4 (h) The registration of dealers.
5 (4) The executive director of the department is
6 authorized, and all conditions are deemed met, to adopt
7 emergency rules under ss. 120.536(1) and 120.54(4) to
8 implement this chapter. Notwithstanding any other provision of
9 law, such emergency rules shall remain effective for 6 months
10 after the date of adoption and may be renewed during the
11 pendency of procedures to adopt rules addressing the subject
12 of the emergency rules.
13 Section 19. Effective January 1, 2002, section 202.27,
14 Florida Statutes, is created to read:
15 202.27 Return filing; rules for self-accrual.--
16 (1) For the purpose of ascertaining the amount of tax
17 payable under this chapter and chapter 203, every dealer has
18 the duty to file a return and remit the taxes to the
19 department, on or before the 20th day of the month, upon forms
20 prepared and furnished by the department or in a format
21 prescribed by it. The department shall, by rule, prescribe the
22 information to be furnished by taxpayers on such returns.
23 (2) The department may require:
24 (a) A quarterly return and payment when the tax
25 remitted by the dealer for the preceding four calendar
26 quarters did not exceed $1,000.
27 (b) A semiannual return and payment when the tax
28 remitted by the dealer for the preceding four calendar
29 quarters did not exceed $500.
30
31
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1 (c) An annual return and payment when the tax remitted
2 by the dealer for the preceding four calendar quarters did not
3 exceed $100.
4 (d) A quarterly return and monthly payment when the
5 tax remitted by the dealer for the preceding four calendar
6 quarters exceeded $1,000 but did not exceed $12,000.
7 (3) The department shall accept returns, except those
8 required to be initiated through an electronic data
9 interchange, as timely if postmarked on or before the 20th day
10 of the month; if the 20th day falls on a Saturday, Sunday, or
11 federal or state legal holiday, returns are timely if
12 postmarked on the next succeeding workday. Any dealer who
13 makes sales of any nature in two or more locations for which
14 returns are required to be filed with the department and who
15 maintains records for such locations in a central office or
16 place may, on each reporting date, file one return for all
17 such places of business in lieu of separate returns for each
18 location; however, the return must clearly indicate the
19 amounts collected within each location. Each dealer shall file
20 a return for each tax period even though no tax is due for
21 such period.
22 (4) Whenever returns are required to be made to the
23 department, the full amount of the taxes required to be paid
24 as shown by the return must be paid and accompany the return,
25 and the failure to remit the full amount of taxes at the time
26 of making the return shall cause the taxes to become
27 delinquent. All taxes and all interest and penalties imposed
28 or administered under this chapter must be remitted to the
29 department at Tallahassee or at another office designated by
30 the department, in the form required by the department.
31
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1 (5) The department may require all returns of taxes
2 under this chapter to be accompanied by a written statement,
3 by the person or by an officer of any firm or corporation
4 required to pay such taxes, setting forth the facts that the
5 department requires in order to ascertain the amount of taxes
6 that are due and payable with the return. The filing of a
7 return that is not accompanied by payment is prima facie
8 evidence of the wrongful conversion of the money due. Any
9 person or any duly authorized corporation officer or agent, or
10 members of any firm or incorporated society or organization,
11 who refuses to make a return and pay the taxes due, as
12 required by the department and in the manner and in the form
13 that the department requires, or to state in writing that the
14 return is correct to the best of his or her knowledge and
15 belief, as required by the department, is subject to a penalty
16 of 6 percent per annum of the amount due and commits a
17 misdemeanor of the first degree, punishable as provided in s.
18 775.082 or s. 775.083. The signing of a written return has the
19 same legal effect as if made under oath without the necessity
20 of appending an oath thereto.
21 (6) The department may provide by rule for
22 self-accrual of the communications services tax when:
23 (a) Authorized by law for holders of direct-pay
24 permits; or
25 (b) The taxable status of sales of communications
26 services will be known only upon use.
27 Section 20. Effective January 1, 2002, section 202.28,
28 Florida Statutes, is created to read:
29 202.28 Credit for collecting tax; penalties.--
30 (1) Except as otherwise provided in s. 202.22, for the
31 purpose of compensating persons providing communications
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1 services for the keeping of prescribed records, the filing of
2 timely tax returns, and the proper accounting and remitting of
3 taxes, persons collecting taxes imposed under this chapter
4 shall be allowed to deduct 0.75 percent of the amount of the
5 tax due and accounted for and remitted to the department.
6 (a) The collection allowance may not be granted, nor
7 may any deduction be permitted, if the required tax return or
8 tax is delinquent at the time of payment.
9 (b) The department may deny the collection allowance
10 if a taxpayer files an incomplete return.
11 1. For the purposes of this chapter, a return is
12 incomplete if it is lacking such uniformity, completeness, and
13 arrangement that the physical handling, verification, review
14 of the return, or determination of other taxes and fees
15 reported on the return can not be readily accomplished.
16 2. The department shall adopt rules requiring the
17 information that it considers necessary to ensure that the
18 taxes levied or administered under this chapter are properly
19 collected, reviewed, compiled, reported, and enforced,
20 including, but not limited to, rules requiring the reporting
21 of the amount of gross sales; the amount of taxable sales; the
22 amount of tax collected or due; the amount of lawful refunds,
23 deductions, or credits claimed; the amount claimed as the
24 dealer's collection allowance; the amount of penalty and
25 interest; and the amount due with the return.
26 (c) The collection allowance and other credits or
27 deductions provided in this chapter shall be applied to the
28 taxes reported for the jurisdiction previously credited with
29 the tax paid.
30 (2)(a) Any person who is required to make a return or
31 pay the taxes imposed by this chapter who fails to timely file
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1 such return or fails to pay the taxes due within the time
2 required, in addition to all other penalties provided by law,
3 is subject to a specific penalty in the amount of 10 percent
4 of any unpaid tax if the failure is for not more than 30 days,
5 and an additional 10 percent of any unpaid tax for each
6 additional 30 days, or fraction thereof, during which the
7 failure continues, not to exceed a total penalty of 50
8 percent, in the aggregate, of any unpaid tax.
9 (b) Any person who knowingly and with a willful intent
10 to evade any tax imposed under this chapter fails to file six
11 consecutive returns as required by law commits a felony of the
12 third degree, punishable as provided in s. 775.082 or s.
13 775.083.
14 (c) Any person who makes a false or fraudulent return
15 with a willful intent to evade payment of any tax or fee
16 imposed under this chapter is liable, in addition to the other
17 penalties provided by law, for a specific penalty of 100
18 percent of the tax bill or fee, and:
19 1. If the total amount of unreported taxes or fees is
20 less than $300:
21 a. Such person commits, for the first offense, a
22 misdemeanor of the second degree, punishable as provided in s.
23 775.082 or s. 775.083.
24 b. Such person commits, for the second offense, a
25 misdemeanor of the first degree, punishable as provided in s.
26 775.082 or s. 775.083.
27 c. Such person commits, for the third and subsequent
28 offenses, a felony of the third degree, punishable as provided
29 in s. 775.082, s. 775.083, or s. 775.084.
30 2. If the total amount of unreported taxes or fees is
31 $300 or more but less than $20,000, such person commits a
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1 felony of the third degree, punishable as provided in s.
2 775.082, s. 775.083, or s. 775.084.
3 3. If the total amount of unreported taxes or fees is
4 $20,000 or more but less than $100,000, such person commits a
5 felony of the second degree, punishable as provided in s.
6 775.082, s. 775.083, or s. 775.084.
7 4. If the total amount of unreported taxes or fees is
8 $100,000 or more, such person commits a felony of the first
9 degree, punishable as provided in s. 775.082, s. 775.083, or
10 s. 775.084.
11 Section 21. Effective January 1, 2002, section 202.29,
12 Florida Statutes, is created to read:
13 202.29 Bad debts.--
14 (1) A dealer who has paid the tax imposed by this
15 chapter may take a credit or obtain a refund for tax paid by
16 the dealer on unpaid balances due on worthless accounts within
17 12 months following the last day of the calendar year for
18 which the bad debt was charged off on the taxpayer's federal
19 income tax return.
20 (2) If any accounts for which a credit or refund has
21 been received are then in whole or in part paid to the dealer,
22 the amount paid must be included in the first return filed
23 after such receipt and the tax paid accordingly.
24 (3) Bad debts associated with accounts receivable
25 which have been assigned or sold with recourse are eligible
26 for inclusion by the dealer in the credit or refund authorized
27 by this section.
28 Section 22. Effective January 1, 2002, section 202.30,
29 Florida Statutes, is created to read:
30 202.30 Payment of taxes by electronic funds transfer;
31 filing of returns by electronic data interchange.--
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1 (1) A dealer of communications services is required to
2 remit taxes by electronic funds transfer, in the manner
3 prescribed by the department, when the amount of tax paid by
4 the dealer under this chapter, chapter 203, or chapter 212 in
5 the previous state fiscal year was $50,000 or more.
6 (2)(a) A dealer who is required to remit taxes by
7 electronic funds transfer shall make a return in a manner that
8 is initiated through an electronic data interchange. The
9 department shall prescribe the acceptable method of transfer;
10 the method, form, and content of the electronic data
11 interchange, giving due regard to developing uniform standards
12 for formats as adopted by the American National Standards
13 Institute; the circumstances under which an electronic data
14 interchange will serve as a substitute for the filing of
15 another form of return; and the means, if any, by which
16 taxpayers will be provided with acknowledgments. The
17 department must accept such returns as timely if initiated and
18 accepted on or before the 20th day of the month. If the 20th
19 day falls on a Saturday, Sunday, or federal or state legal
20 holiday, returns are timely if initiated and accepted on the
21 next succeeding workday.
22 (b) The department may waive the requirement to make a
23 return through an electronic data interchange when problems
24 arise with respect to the taxpayer's computer capabilities,
25 data systems changes, or operating procedures. To obtain a
26 waiver, the taxpayer must prove to the department that such
27 problems exist.
28 (3)(a) The department shall design, prepare, print,
29 and furnish to all dealers, except dealers filing through
30 electronic data interchange, or make available or prescribe to
31 the dealers all necessary forms for filing returns and
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1 instructions to ensure a full collection from dealers and an
2 accounting for the taxes due, but failure of any dealer to
3 secure such forms does not relieve the dealer of the
4 obligation to pay the tax at the time and in the manner
5 required.
6 (b) The department shall prescribe the format and
7 instructions necessary for filing returns in a manner that is
8 initiated through an electronic data interchange to ensure a
9 full collection from dealers and an accounting for the taxes
10 due. The failure of any dealer to use such format does not
11 relieve the dealer of the obligation to pay the tax at the
12 time and in the manner required.
13 Section 23. Effective January 1, 2002, section 202.31,
14 Florida Statutes, is created to read:
15 202.31 Sale of business; liability for tax;
16 procedures; penalty for violations.--
17 (1) If any dealer of communications services who is
18 liable for any tax, interest, or penalty under this chapter
19 sells his or her business or substantially all of his or her
20 assets, the dealer shall make a final return and payment
21 within 15 days thereafter. The dealer's successors or assigns
22 shall withhold a sufficient portion of the purchase money to
23 safely cover the amount of such taxes, interest, and penalties
24 due and unpaid until the former owner produces a receipt from
25 the department showing that they have been paid or a
26 certificate stating that no taxes, interest, or penalties are
27 due. If the purchaser of a business or the purchaser of
28 substantially all of the assets of a business fails to
29 withhold a sufficient amount of the purchase money as required
30 by this subsection, he or she is personally liable for the
31 payment of the taxes, interest, and penalties accruing and
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1 unpaid on account of the operation of the business by any
2 former owners or assigns. Any receipt or certificate from the
3 department does not, without an audit of the selling dealer's
4 books and records by the department, guarantee that there is
5 not a tax deficiency owed the state from operation of the
6 seller's business. To secure protection from the transferee's
7 liability under this section, the seller or purchaser may
8 request an audit of the seller's books and records. The
9 department may contract with private auditors pursuant to s.
10 213.28 to perform the audit. The department may charge the
11 cost of the audit to the person requesting the audit.
12 (2) If any dealer who is liable for any tax, interest,
13 or penalty quits the business without the benefit of a
14 purchaser and there are no successors or assigns, he or she
15 shall make a final return and payment within 15 days. Any
16 person who fails to file such final return and make payment is
17 prohibited from engaging in any business in this state until
18 the person has filed such final return and paid any moneys
19 due. The Department of Legal Affairs may seek an injunction,
20 at the request of the department, to prevent any activity in
21 the performance of further business activity until such tax is
22 paid. A temporary injunction enjoining further business
23 activity may be granted by a court without notice.
24 (3) If a dealer is delinquent in the payment of the
25 taxes imposed or administered by this chapter, the department
26 may give notice of the amount of such delinquency by
27 registered mail to all persons having in their possession or
28 under their control any credits or other personal property
29 belonging to such dealer or owing any debts to such dealer at
30 the time of receipt by them of such notice. All persons so
31 notified shall within 5 days after receipt of the notice
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1 advise the department of all such credits, other personal
2 property, or debts in their possession, under their control,
3 or owing by them. After receiving the notice, the persons so
4 notified may not transfer or make any other disposition of the
5 credits, other personal property, or debts in their possession
6 or under their control at the time they receive the notice
7 until the department consents to a transfer or disposition or
8 until 60 days elapse after the receipt of the notice,
9 whichever occurs first, except that the credits, other
10 personal property, or debts that exceed the delinquent amount
11 stipulated in the notice are not subject to the provisions of
12 this section, wherever held, if such dealer does not have a
13 prior history of sales tax delinquencies. All persons notified
14 must, within 5 days, advise the department of any credits or
15 other personal property belonging to such dealer or any debts
16 incurred and owing to such dealer which subsequently come into
17 their possession or under their control during the time
18 prescribed by the notice or until the department consents to a
19 transfer or disposition, whichever occurs first. If the notice
20 seeks to prevent the transfer or other disposition of a
21 deposit in a bank or other credits or personal property in the
22 possession or under the control of a bank, the notice is
23 ineffective unless it is delivered or mailed to the office of
24 the bank at which the deposit is carried or at which the
25 credits or personal property are held. If, during the
26 effective period of the notice to withhold, any person so
27 notified makes any transfer or disposition of the property or
28 debts required to be withheld, he or she is liable to the
29 state for any indebtedness due under this chapter from the
30 person with respect to whose obligation the notice was given
31 to the extent of the value of the property or the amount of
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1 the debts thus transferred or paid if, solely by reason of
2 such transfer or disposition, the state is unable to recover
3 the indebtedness of the person with respect to whose
4 obligation the notice was given. All such credits or other
5 personal property or debts are subject to garnishment by the
6 department for satisfaction of the delinquent taxes due.
7 (4) After notice by the department of a transferee's
8 liability under this section, the dealer shall have 60 days
9 within which to file an action as provided in chapter 72.
10 (5) Any violation of this section is a misdemeanor of
11 the first degree, punishable as provided in s. 775.082 or s.
12 775.083.
13 Section 24. Effective January 1, 2002, section 202.32,
14 Florida Statutes, is created to read:
15 202.32 State and local agencies to cooperate in
16 administration of law.--The department may request from any
17 state, county, municipal, or local governmental agency any
18 information that the department considers necessary in
19 administering this chapter, and such agency shall furnish such
20 information.
21 Section 25. Effective January 1, 2002, section 202.33,
22 Florida Statutes, is created to read:
23 202.33 Taxes declared to be government funds;
24 penalties for failure to remit taxes; warrants.--
25 (1) The taxes collected under this chapter become
26 government funds from the moment of collection by the dealer.
27 (2) Any person who, with intent to unlawfully deprive
28 or defraud the state or a local government of its moneys or
29 the use or benefit thereof, fails to remit taxes collected
30 under this chapter is guilty of the theft of government funds,
31 punishable as follows:
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1 (a) If the total amount of stolen revenue is less than
2 $300, the offense is a misdemeanor of the second degree,
3 punishable as provided in s. 775.082 or s. 775.083. For a
4 second offense, the offender is guilty of a misdemeanor of the
5 first degree, punishable as provided in s. 775.082 or s.
6 775.083. For a third or subsequent offense, the offender is
7 guilty of a felony of the third degree, punishable as provided
8 in s. 775.082, s. 775.083, or s. 775.084.
9 (b) If the total amount of stolen revenue is $300 or
10 more, but less than $20,000, the offense is a felony of the
11 third degree, punishable as provided in s. 775.082, s.
12 775.083, or s. 775.084.
13 (c) If the total amount of stolen revenue is $20,000
14 or more, but less than $100,000, the offense is a felony of
15 the second degree, punishable as provided in s. 775.082, s.
16 775.083, or s. 775.084.
17 (d) If the total amount of stolen revenue is $100,000
18 or more, the offense is a felony of the first degree,
19 punishable as provided in s. 775.082, s. 775.083, or s.
20 775.084.
21 (3) All taxes collected under this chapter must be
22 remitted to the department. In addition to criminal sanctions,
23 the department shall, when any tax becomes delinquent or is
24 otherwise in jeopardy under this chapter, issue a warrant for
25 the full amount of the tax due or estimated to be due, with
26 the interest, penalties, and cost of collection, directed to
27 the sheriffs of the state, and mail the warrant to the clerk
28 of the circuit court of the county where any property of the
29 taxpayer is located. Upon receipt of the warrant, the clerk of
30 the circuit court shall record it, and thereupon the amount of
31 the warrant becomes a lien on any real or personal property of
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1 the taxpayer in the same manner as a recorded judgment. The
2 department may issue a tax execution to enforce the collection
3 of taxes imposed by this chapter and deliver it to any
4 sheriff. The sheriff shall thereupon proceed in the same
5 manner as prescribed by law for executions and shall be
6 entitled to the same fees for his or her services in executing
7 the warrant to be collected. The department may also have a
8 writ of garnishment with respect to any indebtedness due to
9 the delinquent dealer by a third person in any goods, money,
10 chattels, or effects of the delinquent dealer in the hands,
11 possession, or control of the third person. Upon payment of
12 the execution, warrant, judgment, or garnishment, the
13 department shall satisfy the lien of record within 30 days. If
14 there is jeopardy to the revenue and jeopardy is asserted in
15 or with an assessment, the department shall proceed in the
16 manner specified for jeopardy assessments in s. 213.732.
17 Section 26. Effective January 1, 2002, section 202.34,
18 Florida Statutes, is created to read:
19 202.34 Records required to be kept; power to inspect;
20 audit procedure.--
21 (1)(a) Each dealer shall secure, maintain, and keep as
22 long as required by s. 213.35 a complete record of
23 communications services sold at retail by the dealer, together
24 with invoices, records of gross receipts from such sales, and
25 other pertinent records and papers required by the department
26 for the reasonable administration of this chapter. All such
27 records that are located or maintained in this state must be
28 made available for inspection by the department at all
29 reasonable hours at the dealer's office or other place of
30 business located in this state. Any dealer who maintains such
31 books and records outside this state must make such books and
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1 records available for inspection by the department wherever
2 the dealer's general records are kept. Any dealer subject to
3 the provisions of this chapter who violates this subsection is
4 guilty of a misdemeanor of the first degree, punishable as
5 provided in s. 775.082 or s. 775.083. If, however, any
6 subsequent offense involves intentional destruction of such
7 records with an intent to evade payment of or deprive the
8 government of any tax revenues, such subsequent offense
9 constitutes a felony of the third degree, punishable as
10 provided in s. 775.082 or s. 775.083.
11 (b) For the purpose of this subsection, if a dealer
12 does not have adequate records of its sales of communications
13 services, the department may, upon the basis of a test or
14 sampling of the dealer's available records or other
15 information relating to the sales made by such dealer for a
16 representative period, determine the proper basis for
17 assessing tax. This subsection does not affect the duty of the
18 dealer to collect, or the liability of any consumer to pay,
19 any tax imposed or administered under this chapter.
20 (c) If the records of a dealer are adequate but
21 voluminous, the department may reasonably sample such records
22 and project the audit findings derived therefrom over the
23 entire audit period to determine the proper basis for
24 assessing tax. In order to conduct such a sample, the
25 department must first make a good faith effort to reach an
26 agreement with the dealer which provides for the means and
27 methods to be used in the sampling process. If an agreement is
28 not reached, the dealer is entitled to a review by the
29 executive director or the executive director's designee of the
30 sampling method to be used by the auditor.
31
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1 (2) For the purpose of enforcement of this chapter,
2 each dealer shall allow the department to examine its books
3 and records at all reasonable hours; and, if the dealer
4 refuses, the department may petition the circuit court to
5 order the dealer to permit such examination, subject to the
6 right of removal of the cause to the judicial circuit wherein
7 such person's business is located or wherein such person's
8 books and records are kept.
9 (3) Each person who sells or purchases communications
10 services shall permit the department to examine his or her
11 books and records at all reasonable hours. The person shall
12 also maintain books and records as long as required by s.
13 213.35 in order to disclose the sales and purchases of all
14 services sold, to whom sold, and the amount sold, in the form
15 and manner that the department requires, so that the
16 department can determine the volume of services sold or
17 purchased, as defined by this chapter, and the dates and
18 amounts of such sales and purchases. The department may
19 petition the circuit court to require any person who refuses
20 to keep such records to permit such inspection, subject to the
21 right of removal of the cause to the judicial circuit wherein
22 such person's business is located or wherein such person's
23 books and records are kept.
24 (4)(a) The department shall send written notification,
25 at least 60 days prior to the date an auditor is scheduled to
26 begin an audit, informing the person of the audit. The
27 department is not required to give 60 days' prior notification
28 of a forthcoming audit whenever the person requests an
29 emergency audit.
30 (b) The written notification must specify:
31
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1 1. The approximate date on which the auditor is
2 scheduled to begin the audit.
3 2. A reminder that all of the records, receipts,
4 invoices, resale certificates, and related documentation of
5 the person must be made available to the auditor.
6 3. Any other requests or suggestions that the
7 department considers necessary.
8 (c) Only records, receipts, invoices, resale
9 certificates, and related documentation that are available to
10 the auditor when the audit begins are acceptable for the
11 purposes of the audit. A resale certificate containing a date
12 prior to the date the audit commences constitutes acceptable
13 documentation of the specific transactions that occurred in
14 the past.
15 (d) The provisions of this chapter concerning
16 fraudulent or improper records, receipts, invoices, resale
17 certificates, and related documentation apply with respect to
18 any audit.
19 (e) The requirement in paragraph (a) of 60 days'
20 written notification does not apply in cases of distress or
21 jeopardy as provided in s. 202.33 or s. 202.36.
22 Section 27. Effective January 1, 2002, section 202.35,
23 Florida Statutes, is created to read:
24 202.35 Powers of department in dealing with
25 delinquents; tax to be separately stated.--
26 (1) If any dealer or other person fails to remit the
27 tax, or any portion thereof, on or before the day when the tax
28 is required by law to be paid, there will be added to the
29 amount due interest at the rate calculated pursuant to s.
30 213.235 of the amount due from the date due until paid.
31 Interest on the delinquent tax is to be calculated beginning
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1 on the 21st day of the month following the month for which the
2 tax is due, except as otherwise provided in this chapter.
3 (2) All penalties and interest imposed by this chapter
4 are payable to and collectible by the department in the same
5 manner as if they were a part of the tax collected under this
6 chapter. The department may settle or compromise any such
7 interest or penalties pursuant to s. 213.21.
8 (3) If a dealer or other person fails or refuses to
9 make his or her records available for inspection so that an
10 audit or examination of his or her books and records cannot be
11 made, fails or refuses to register as a dealer, fails to make
12 a report and pay the tax as provided by this chapter, makes a
13 grossly incorrect report, or makes a report that is false or
14 fraudulent, the department shall make an assessment from an
15 estimate based upon the best information then available to it
16 for the taxable period of retail sales of the dealer, together
17 with any accrued interest and penalties. The department shall
18 then proceed to collect the taxes, interest, and penalties on
19 the basis of such assessment, which shall be considered prima
20 facie correct; and the burden to show the contrary rests upon
21 the dealer or other person.
22 (4) Each dealer who makes retail sales of
23 communications services shall add the amount of the taxes
24 imposed or administered under this chapter to the price of the
25 services sold by him or her and shall state the taxes
26 separately from the price of the services on all invoices. The
27 combined amount of taxes due under ss. 202.12 and 203.01 shall
28 be stated and identified as the Florida communications
29 services tax, and the combined amount of taxes due under s.
30 202.19 shall be stated and identified as the local
31 communications services tax.
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1 (5) A dealer may not advertise or hold out to the
2 public, in any manner, directly or indirectly, that he or she
3 will absorb all or any part of the tax; that he or she will
4 relieve the purchaser of the payment of all or any part of the
5 tax; that the tax will not be added to the selling price of
6 the property or services sold or released; or, when added,
7 that it or any part thereof will be refunded either directly
8 or indirectly by any method. A person who violates this
9 subsection with respect to advertising or refund is guilty of
10 a misdemeanor of the second degree, punishable as provided in
11 s. 775.082 or s. 775.083. A second or subsequent offense
12 constitutes a misdemeanor of the first degree, punishable as
13 provided in s. 775.082 or s. 775.083.
14 (6) Whenever in the construction, administration, or
15 enforcement of this chapter there is any question respecting a
16 duplication of the tax, the sale to the end consumer or last
17 retail sale is the sale to be taxed, and, insofar as is
18 practicable, there is to be no duplication or pyramiding of
19 the tax.
20 Section 28. Effective January 1, 2002, section 202.36,
21 Florida Statutes, is created to read:
22 202.36 Departmental powers; hearings; distress
23 warrants; bonds; subpoenas and subpoenas duces tecum.--
24 (1) Any person required to pay a tax imposed or
25 administered under this chapter or to make a return who
26 renders a return or makes a payment of a tax with intent to
27 deceive or defraud the government and prevent the government
28 from collecting the amount of taxes imposed or administered by
29 this chapter, or who otherwise fails to comply with this
30 chapter for the taxable period for which any return is made,
31 any tax is paid, or any report is made to the department, may
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1 be required by the department to show cause at a time and
2 place to be set by the department, after 10 days' notice in
3 writing requiring the production of such books, records, or
4 papers relating to the business of such person for such tax
5 period as the department requires. The department may require
6 such person or his or her employees to give testimony under
7 oath and answer interrogatories respecting the sale of
8 communications services within this state, the failure to make
9 a true report thereof, or failure to pay the true amount of
10 the tax required to be paid under this chapter. If such person
11 fails to produce such books, records, or papers or to appear
12 and answer questions within the scope of investigation
13 relating to matters concerning taxes to be imposed or
14 administered under this chapter, or fails to allow his or her
15 agents or employees to give testimony, the department may
16 estimate any unpaid deficiencies in taxes to be assessed
17 against such person based on whatever information is available
18 to it and may issue a distress warrant for the collection of
19 such taxes, interest, or penalties estimated by the department
20 to be due and payable; and such assessment shall be deemed
21 prima facie correct. In such cases, the warrant shall be
22 issued to the sheriff of any county in the state where such
23 person owns or possesses any property; and the sheriff shall
24 seize such property as is required to satisfy any such taxes,
25 interest, or penalties and sell such property under the
26 distress warrant in the same manner as property is permitted
27 to be seized and sold under distress warrants issued to secure
28 the payment of delinquent taxes. The department shall also
29 have the right to writ of garnishment to subject any
30 indebtedness due to the delinquent dealer by a third person in
31 any goods, money, chattels, or effects of the delinquent
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1 dealer in the hands, possession, or control of the third
2 person in the manner provided by law. The person whose tax
3 return or report is being investigated may by written request
4 to the department require that the hearing be set at a place
5 within the judicial circuit wherein the person's business is
6 located or wherein such person's books and records are kept.
7 If there is jeopardy to the revenue and jeopardy is asserted
8 in or with an assessment, the department shall proceed in the
9 manner specified for jeopardy assessment in s. 213.732.
10 (2) Whenever it is necessary to ensure compliance with
11 this chapter, the department shall require a cash deposit,
12 bond, or other security as a condition to a person's obtaining
13 or retaining a dealer's certificate of registration under this
14 chapter. The bond must be in such form and amount as the
15 department deems appropriate under the particular
16 circumstances. Any person who fails to produce such cash
17 deposit, bond, or other security may not obtain or retain a
18 dealer's certificate of registration under this chapter. The
19 Department of Legal Affairs may seek an injunction, when
20 requested by the department, to prevent such person from doing
21 business subject to the provisions of this chapter until the
22 cash deposit, bond, or other security is posted with the
23 department. Any security required to be deposited may be sold
24 by the department at public sale if it becomes necessary to do
25 so in order to recover any tax, interest, or penalty due.
26 Notice of such sale may be served personally or by mail upon
27 the person who deposited the security. Mailing the notice to
28 the last known address appearing on the records of the
29 department constitutes adequate service. Any proceeds of the
30 sale exceeding the amount due under this chapter must be
31 returned to the person who deposited the security.
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1 (3) The department or any person authorized by it in
2 writing is authorized to make and sign assessments, tax
3 warrants, assignments of tax warrants, and satisfaction of tax
4 warrants.
5 (4)(a) The department may issue subpoenas or subpoenas
6 duces tecum compelling the attendance and testimony of
7 witnesses and the production of books, records, written
8 materials, and electronically recorded information. Subpoenas
9 must be issued with the written and signed approval of the
10 executive director or his or her designee on written and sworn
11 application by any employee of the department. The application
12 must set forth the reason for the application, the name of the
13 person subpoenaed, the time and place of appearance of the
14 witness, and a description of any books, records, or
15 electronically recorded information to be produced, together
16 with a statement by the applicant that the department has
17 unsuccessfully attempted other reasonable means of securing
18 information and that the testimony of the witness or the
19 written or electronically recorded materials sought in the
20 subpoena are necessary for the collection of taxes, penalty,
21 or interest or the enforcement of the taxes levied or
22 administered under this chapter. A subpoena shall be served in
23 the manner provided by law and by the Florida Rules of Civil
24 Procedure and shall be returnable only during regular business
25 hours and at least 20 calendar days after the date of service
26 of the subpoena. Any subpoena to which this subsection applies
27 must identify the taxpayer to whom the subpoena relates and to
28 whom the records pertain and must provide other information to
29 enable the person subpoenaed to locate the records required
30 under the subpoena. The department shall give notice to the
31 taxpayer to whom the subpoena relates within 3 days after the
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1 day on which the service of the subpoena is made. Within 14
2 days after service of the subpoena, the person to whom the
3 subpoena is directed may serve written objection to the
4 inspection or copying of any of the designated materials. If
5 objection is made, the department may not inspect or copy the
6 materials, except pursuant to an order of the circuit court.
7 If an objection is made, the department may petition any
8 circuit court for an order to comply with the subpoena. The
9 subpoena must contain a written notice of the right to object
10 to the subpoena. Every subpoena served upon the witness or
11 custodian of records must be accompanied by a copy of the
12 provisions of this subsection. If a person refuses to obey a
13 subpoena or subpoena duces tecum, the department may apply to
14 any circuit court of this state to enforce compliance with the
15 subpoena. Witnesses are entitled to be paid a mileage
16 allowance and witness fees as authorized for witnesses in
17 civil cases.
18 (b)1. If any subpoena is served on any person who is a
19 third-party recordkeeper and the subpoena requires the
20 production of any portion of the records made or kept of the
21 business transactions or affairs of any person other than the
22 person subpoenaed, notice of the subpoena must be given to any
23 person to whom the records pertain and to the taxpayer to whom
24 the subpoena relates. Such notice must be given within 3 days
25 after the day on which the service on the third-party
26 recordkeeper is made, if the department can at that time
27 identify the person to whom the records pertain. If the person
28 to whom the records pertain cannot be identified at the time
29 of issuance of the subpoena, the third-party recordkeeper
30 shall immediately inform the department of such person's
31 identity, and the department shall give notice to that person
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1 within 3 days thereafter. The notice must be accompanied by a
2 copy of the subpoena that has been served and must contain
3 directions for staying compliance with the subpoena under
4 subparagraph (c)2.
5 2. The notice is sufficient if, on or before the third
6 day, the notice is delivered in hand to the person entitled to
7 notice or is mailed by certified or registered mail to the
8 last known mailing address of the person, or, in the absence
9 of a last known address, is left with the person subpoenaed.
10 3. As used in this subsection, "third-party
11 recordkeeper" means:
12 a. Any mutual savings bank, cooperative bank, domestic
13 building and loan association, or other savings institution
14 chartered and supervised as a savings and loan association or
15 similar association under federal or state law; a bank as
16 defined in s. 581 of the Internal Revenue Code; or any credit
17 union within the meaning of s. 501(c)(14)(A) of the Internal
18 Revenue Code.
19 b. Any consumer reporting agency as defined under s.
20 603(f) of the Fair Credit Reporting Act, 15 U.S.C. s.
21 1681a(f).
22 c. Any person extending credit through the use of
23 credit cards or similar devices.
24 d. Any broker as defined in s. 3(a)(4) of the
25 Securities Exchange Act of 1934, 15 U.S.C. s. 78c(a)(4).
26 e. Any attorney.
27 f. Any accountant.
28 g. Any barter exchange as defined in s. 6045(c)(3) of
29 the Internal Revenue Code.
30 h. Any regulated investment company as defined in s.
31 851 of the Internal Revenue Code.
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1 4. This paragraph does not apply to a subpoena served
2 on the person with respect to whose liability the subpoena is
3 issued or an officer or employee of the person; to a subpoena
4 to determine whether or not records of the business
5 transactions or affairs of an identified person have been made
6 or kept; or to a subpoena described in paragraph (f).
7 (c)1. Notwithstanding any other law, a person who is
8 entitled to notice of a subpoena under paragraph (b) and the
9 taxpayer to whom the subpoena relates have the right to
10 intervene in any proceeding with respect to the enforcement of
11 the subpoena under paragraph (a).
12 2. Notwithstanding any other law, a person who is
13 entitled to notice of a subpoena under paragraph (b) and the
14 taxpayer to whom the subpoena relates have the right to stay
15 compliance with the subpoena if, not later than the 14th day
16 after the day the notice is given in the manner provided in
17 subparagraph (b)2.:
18 a. Notice of intent to stay the subpoena is given in
19 writing to the person subpoenaed;
20 b. A copy of the notice of intent to stay the subpoena
21 is mailed by registered or certified mail to the person and to
22 the department; and
23 c. Suit is filed against the department in the circuit
24 court to stay compliance with the subpoena.
25 (d) An examination of any records required to be
26 produced under a subpoena as to which notice is required under
27 paragraph (b) may not be made:
28 1. Before the expiration of the 14-day period allowed
29 for the notice of intent to stay under subparagraph (c)2.; or
30 2. When the requirements of subparagraph (c)2. have
31 been met, except in accordance with an order issued by the
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1 circuit court authorizing examination of the records or with
2 the consent of the person staying compliance.
3 (e) Any subpoena issued under paragraph (a) which does
4 not identify the person with respect to whose liability the
5 subpoena is issued may be served only after a proceeding in
6 any circuit court in which the department establishes that:
7 1. The subpoena relates to the investigation of a
8 particular person or ascertainable group or class of persons.
9 2. There is reasonable basis for believing that the
10 person or group or class of persons may fail or may have
11 failed to comply with any provision of state law.
12 3. The information sought to be obtained from the
13 examination of the records and the identity of the person or
14 persons with respect to whose liability the subpoena is issued
15 is not readily available from other sources.
16 (f) In the case of a subpoena issued under paragraph
17 (a), the provisions of subparagraph (b)1. and paragraph (c) do
18 not apply if, upon petition by the department, a circuit court
19 determines, on the basis of the facts and circumstances
20 alleged, that there is reasonable cause to believe that the
21 giving of notice may lead to attempts to conceal, destroy, or
22 alter records relevant to the examination, may prevent the
23 communication of information from other persons through
24 intimidation, bribery, or collusion, or may result in flight
25 to avoid prosecution, testifying, or production of records.
26 (g)1. Any circuit court has jurisdiction to hear and
27 determine proceedings brought under paragraph (e) or paragraph
28 (f). The determinations required to be made under paragraphs
29 (e) and (f) shall be ex parte and shall be made solely upon
30 the petition and supporting affidavits. An order denying the
31 petition shall be deemed a final order that may be appealed.
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1 2. Except for cases that the court considers of great
2 importance, any proceeding brought for the enforcement of any
3 subpoena or any proceeding under this subsection, and any
4 appeal therefrom, takes precedence on the docket over all
5 cases and shall be assigned for hearing and decided at the
6 earliest practicable date.
7 (h) The department shall by rule establish the rates
8 and conditions for payments to reimburse reasonably necessary
9 costs directly incurred by third-party recordkeepers in
10 searching for, reproducing, or transporting books, papers,
11 records, or other data required to be produced by subpoena
12 upon request of the department. The reimbursement shall be in
13 addition to any mileage allowance and fees paid under
14 paragraph (a).
15 (i)1. Except as provided in subparagraph 2., an action
16 initiated in circuit court under this subsection must be filed
17 in the circuit court in the county where:
18 a. The taxpayer to whom the subpoena relates resides
19 or maintains his or her principal commercial domicile in this
20 state;
21 b. The person subpoenaed resides or maintains his or
22 her principal commercial domicile in this state; or
23 c. The person to whom the records pertain resides or
24 maintains his or her principal commercial domicile in this
25 state.
26 2. Venue in an action initiated in circuit court under
27 this subsection by a person who is not a resident of this
28 state or does not maintain a commercial domicile in this state
29 rests in Leon County.
30
31
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1 3. Venue in an action initiated in circuit court
2 pursuant to paragraph (e) rests in the Second Judicial Circuit
3 Court in and for Leon County.
4 Section 29. Section 202.37, Florida Statutes, is
5 created to read:
6 202.37 Special rules for administration of local
7 communications services tax.--
8 (1)(a) Except as otherwise provided in this section,
9 all statutory provisions and administrative rules applicable
10 to the communications services tax imposed by s. 202.12 apply
11 to any local communications services tax imposed under s.
12 202.19, and the department shall administer, collect, and
13 enforce all taxes imposed under s. 202.19, including interest
14 and penalties attributable thereto, in accordance with the
15 same procedures used in the administration, collection, and
16 enforcement of the communications services tax imposed by s.
17 202.12.
18 (b) The department may contract with one or more
19 private entities to assist it in fulfilling its obligation of
20 administering the local communications services taxes imposed
21 under this chapter, including, but not limited to, the
22 compilation, maintenance, and publication of data pursuant to
23 ss. 202.21 and 202.22.
24 (2) Each dealer of communications services obligated
25 to collect and remit one or more local communications services
26 taxes imposed under s. 202.19 shall separately report and
27 identify each such tax to the department, by jurisdiction, on
28 a form prescribed by the department, and shall pay such taxes
29 to the department. However, taxes imposed under s. 202.19(5)
30 shall be added to and included in the amounts reported to the
31 department as taxes imposed under s. 202.19(1). A dealer of
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1 communications services may include in a single payment to the
2 department:
3 (a) The total amount of all local communications
4 services taxes imposed pursuant to s. 202.19; and
5 (b) The amount of communications services tax imposed
6 by ss. 202.12 and 203.01.
7 Section 30. The Revenue Estimating Conference shall
8 compute the rate of the tax on the sales price of
9 direct-to-home satellite services pursuant to s. 202.12(1)(c),
10 Florida Statutes, on or before December 31, 2000, and such
11 rate shall be presented to the Legislature for review and
12 approval during the 2001 Regular Session.
13 Section 31. The executive director of the Department
14 of Revenue shall appoint members to an advisory committee by
15 August 1, 2000. Each member shall serve at the discretion of
16 the executive director. The committee shall include consumer,
17 county, municipal, state, and communications services dealer
18 representatives, along with other interested parties the
19 executive director deems appropriate. During the period of
20 implementation of the communications services tax
21 simplification law, the committee shall advise the executive
22 director regarding the department's transition strategy,
23 development of necessary business processes, rule adoption
24 processes, and processes for identifying issues for further
25 legislative consideration.
26 Section 32. Effective January 1, 2002, paragraph (a)
27 of subsection (1) of section 72.011, Florida Statutes, is
28 amended to read:
29 72.011 Jurisdiction of circuit courts in specific tax
30 matters; administrative hearings and appeals; time for
31 commencing action; parties; deposits.--
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1 (1)(a) A taxpayer may contest the legality of any
2 assessment or denial of refund of tax, fee, surcharge, permit,
3 interest, or penalty provided for under s. 125.0104, s.
4 125.0108, chapter 198, chapter 199, chapter 201, chapter 202,
5 chapter 203, chapter 206, chapter 207, chapter 210, chapter
6 211, chapter 212, chapter 213, chapter 220, chapter 221, s.
7 370.07(3), chapter 376, s. 403.717, s. 403.718, s. 403.7185,
8 s. 403.7195, s. 538.09, s. 538.25, chapter 550, chapter 561,
9 chapter 562, chapter 563, chapter 564, chapter 565, chapter
10 624, or s. 681.117 by filing an action in circuit court; or,
11 alternatively, the taxpayer may file a petition under the
12 applicable provisions of chapter 120. However, once an action
13 has been initiated under s. 120.56, s. 120.565, s. 120.569, s.
14 120.57, or s. 120.80(14)(b), no action relating to the same
15 subject matter may be filed by the taxpayer in circuit court,
16 and judicial review shall be exclusively limited to appellate
17 review pursuant to s. 120.68; and once an action has been
18 initiated in circuit court, no action may be brought under
19 chapter 120.
20 Section 33. Effective January 1, 2002, section 213.05,
21 Florida Statutes, is amended to read:
22 213.05 Department of Revenue; control and
23 administration of revenue laws.--The Department of Revenue
24 shall have only those responsibilities for ad valorem taxation
25 specified to the department in chapter 192, taxation, general
26 provisions; chapter 193, assessments; chapter 194,
27 administrative and judicial review of property taxes; chapter
28 195, property assessment administration and finance; chapter
29 196, exemption; chapter 197, tax collections, sales, and
30 liens; chapter 199, intangible personal property taxes; and
31 chapter 200, determination of millage. The Department of
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1 Revenue shall have the responsibility of regulating,
2 controlling, and administering all revenue laws and performing
3 all duties as provided in s. 125.0104, the Local Option
4 Tourist Development Act; s. 125.0108, tourist impact tax;
5 chapter 198, estate taxes; chapter 201, excise tax on
6 documents; chapter 202, communications services tax; chapter
7 203, gross receipts taxes; chapter 206, motor and other fuel
8 taxes; chapter 211, tax on production of oil and gas and
9 severance of solid minerals; chapter 212, tax on sales, use,
10 and other transactions; chapter 220, income tax code; chapter
11 221, emergency excise tax; ss. 336.021 and 336.025, taxes on
12 motor fuel and special fuel; s. 370.07(3), Apalachicola Bay
13 oyster surcharge; s. 376.11, pollutant spill prevention and
14 control; s. 403.718, waste tire fees; s. 403.7185, lead-acid
15 battery fees; s. 403.7195, waste newsprint disposal fees; s.
16 538.09, registration of secondhand dealers; s. 538.25,
17 registration of secondary metals recyclers; s. 624.4621, group
18 self-insurer's fund premium tax; s. 624.5091, retaliatory tax;
19 s. 624.475, commercial self-insurance fund premium tax; ss.
20 624.509-624.511, insurance code: administration and general
21 provisions; s. 624.515, State Fire Marshal regulatory
22 assessment; s. 627.357, medical malpractice self-insurance
23 premium tax; s. 629.5011, reciprocal insurers premium tax; and
24 s. 681.117, motor vehicle warranty enforcement.
25 Section 34. Effective January 1, 2002, subsection (1)
26 of section 213.053, Florida Statutes, is amended, and
27 paragraph (r) is added to subsection (7) of that section, to
28 read:
29 213.053 Confidentiality and information sharing.--
30 (1) The provisions of this section apply to s.
31 125.0104, county government; s. 125.0108, tourist impact tax;
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1 chapter 175, municipal firefighters' pension trust funds;
2 chapter 185, municipal police officers' retirement trust
3 funds; chapter 198, estate taxes; chapter 199, intangible
4 personal property taxes; chapter 201, excise tax on documents;
5 chapter 202, communications services tax; chapter 203, gross
6 receipts taxes; chapter 211, tax on severance and production
7 of minerals; chapter 212, tax on sales, use, and other
8 transactions; chapter 220, income tax code; chapter 221,
9 emergency excise tax; s. 252.372, emergency management,
10 preparedness, and assistance surcharge; s. 370.07(3),
11 Apalachicola Bay oyster surcharge; chapter 376, pollutant
12 spill prevention and control; s. 403.718, waste tire fees; s.
13 403.7185, lead-acid battery fees; s. 403.7195, waste newsprint
14 disposal fees; s. 538.09, registration of secondhand dealers;
15 s. 538.25, registration of secondary metals recyclers; ss.
16 624.501 and 624.509-624.515, insurance code; s. 681.117, motor
17 vehicle warranty enforcement; and s. 896.102, reports of
18 financial transactions in trade or business.
19 (7) Notwithstanding any other provision of this
20 section, the department may provide:
21 (r) Information relative to chapter 202 to each local
22 government that imposes a tax pursuant to s. 202.19 in the
23 conduct of its official duties as specified in chapter 202.
24 Data provided under this paragraph shall not be disclosed to
25 any other person or entity other than a person or entity
26 directly responsible for administering the tax. Such data
27 shall not be used for any purpose other than for administering
28 the tax and assisting the department's administration of
29 chapter 202.
30
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1 Disclosure of information under this subsection shall be
2 pursuant to a written agreement between the executive director
3 and the agency. Such agencies, governmental or
4 nongovernmental, shall be bound by the same requirements of
5 confidentiality as the Department of Revenue. Breach of
6 confidentiality is a misdemeanor of the first degree,
7 punishable as provided by s. 775.082 or s. 775.083.
8 Section 35. Effective January 1, 2002, subsection (6)
9 of section 212.20, Florida Statutes, is amended to read:
10 212.20 Funds collected, disposition; additional powers
11 of department; operational expense; refund of taxes
12 adjudicated unconstitutionally collected.--
13 (6) Distribution of all proceeds under this chapter
14 and s. 202.18(1)(b) and (2)(b) shall be as follows:
15 (a) Proceeds from the convention development taxes
16 authorized under s. 212.0305 shall be reallocated to the
17 Convention Development Tax Clearing Trust Fund.
18 (b) Proceeds from discretionary sales surtaxes imposed
19 pursuant to ss. 212.054 and 212.055 shall be reallocated to
20 the Discretionary Sales Surtax Clearing Trust Fund.
21 (c) Proceeds from the tax imposed pursuant to s.
22 212.06(5)(a)2. shall be reallocated to the Mail Order Sales
23 Tax Clearing Trust Fund.
24 (d) Proceeds from the fee imposed pursuant to s.
25 212.18(5) shall be deposited in the Solid Waste Management
26 Clearing Trust Fund, which is hereby created to be used by the
27 department, and shall be subsequently transferred to the State
28 Treasurer to be deposited into the Solid Waste Management
29 Trust Fund.
30
31
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1 (e) Proceeds from the fees imposed under ss.
2 212.05(1)(i)3. and 212.18(3) shall remain with the General
3 Revenue Fund.
4 (f) The proceeds of all other taxes and fees imposed
5 pursuant to this chapter or remitted pursuant to s.
6 202.18(1)(b) and (2)(b) shall be distributed as follows:
7 1. In any fiscal year, the greater of $500 million,
8 minus an amount equal to 4.6 percent of the proceeds of the
9 taxes collected pursuant to chapter 201, or 5 percent of all
10 other taxes and fees imposed pursuant to this chapter or
11 remitted pursuant to s. 202.18(1)(b) and (2)(b) shall be
12 deposited in monthly installments into the General Revenue
13 Fund.
14 2. Two-tenths of one percent shall be transferred to
15 the Solid Waste Management Trust Fund.
16 3. After the distribution under subparagraphs 1. and
17 2., 9.653 percent of the amount remitted by a sales tax dealer
18 located within a participating county pursuant to s. 218.61
19 shall be transferred into the Local Government Half-cent Sales
20 Tax Clearing Trust Fund.
21 4. After the distribution under subparagraphs 1., 2.,
22 and 3., 0.054 percent shall be transferred to the Local
23 Government Half-cent Sales Tax Clearing Trust Fund and
24 distributed pursuant to s. 218.65.
25 5. Of the remaining proceeds:
26 a. Beginning July 1, 1992, $166,667 shall be
27 distributed monthly by the department to each applicant that
28 has been certified as a "facility for a new professional
29 sports franchise" or a "facility for a retained professional
30 sports franchise" pursuant to s. 288.1162 and $41,667 shall be
31 distributed monthly by the department to each applicant that
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1 has been certified as a "new spring training franchise
2 facility" pursuant to s. 288.1162. Distributions shall begin
3 60 days following such certification and shall continue for 30
4 years. Nothing contained herein shall be construed to allow an
5 applicant certified pursuant to s. 288.1162 to receive more in
6 distributions than actually expended by the applicant for the
7 public purposes provided for in s. 288.1162(7). However, a
8 certified applicant shall receive distributions up to the
9 maximum amount allowable and undistributed under this section
10 for additional renovations and improvements to the facility
11 for the franchise without additional certification.
12 b. Beginning 30 days after notice by the Office of
13 Tourism, Trade, and Economic Development to the Department of
14 Revenue that an applicant has been certified as the
15 professional golf hall of fame pursuant to s. 288.1168 and is
16 open to the public, $166,667 shall be distributed monthly, for
17 up to 300 months, to the applicant.
18 c. Beginning 30 days after notice by the Department of
19 Commerce to the Department of Revenue that the applicant has
20 been certified as the International Game Fish Association
21 World Center facility pursuant to s. 288.1169, and the
22 facility is open to the public, $83,333 shall be distributed
23 monthly, for up to 180 months, to the applicant. This
24 distribution is subject to reduction pursuant to s. 288.1169.
25 6. All other proceeds shall remain with the General
26 Revenue Fund.
27 Section 36. Paragraphs (e) and (f) of subsection (9)
28 of section 166.231, Florida Statutes, are amended to read:
29 166.231 Municipalities; public service tax.--
30
31
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1 (9) A municipality may levy a tax on the purchase of
2 telecommunication services as defined in s. 203.012 as
3 follows:
4 (e) Purchases of local telephone service or other
5 telecommunications service for use in the conduct of a
6 telecommunications service for hire or otherwise for resale,
7 including resale of telecommunication services paid by using a
8 prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.,
9 are exempt from the tax imposed by this subsection.
10 (f) A seller of services which are subject to the tax
11 imposed by a municipality under this subsection shall file a
12 return with the municipality each month. The form of the
13 return shall be determined by the seller, and the return shall
14 be deemed sufficient if it identifies the name and address of
15 the seller, the period of the return, the amount collected
16 from the sale of taxable services, any collection allowance
17 taken, the amount of tax remitted with the return, and the
18 name and telephone number of a person authorized by the seller
19 to respond to inquiries from municipalities concerning the
20 seller's administration of the tax. A municipality may not
21 require any return or payment of public service tax other than
22 on a date returns and payments of tax are required under
23 chapter 212. However, a municipality may grant an extension of
24 the due date for a return or payment upon written request from
25 the seller. The deduction authorized by paragraph (b) shall
26 not be allowed in the event of an untimely return, unless the
27 seller has in writing requested and been granted an extension
28 of time for filing such return. Extensions of time shall be
29 granted if reasonable cause is shown, whether requested before
30 or after the due date of the return. Notwithstanding any other
31
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1 provision of law, the public service tax shall not be
2 collected at point of sale on prepaid calling arrangements.
3 Section 37. Effective July 1, 2000, all taxes that
4 have been collected pursuant to section 166.231(9)(f), Florida
5 Statutes, at the point of sale on prepaid calling arrangements
6 prior to July 1, 2000, must be remitted, and taxes that have
7 been collected at the point of sale on prepaid calling
8 arrangements and remitted before July 1, 2000, are not subject
9 to refund. Any taxes that were not collected pursuant to
10 section 166.231(9)(f), Florida Statutes, prior to July 1,
11 2000, at the point of sale on prepaid calling arrangements
12 need not be paid and are forgiven.
13 Section 38. Effective January 1, 2002, and applicable
14 to communications services reflected on bills dated on or
15 after that date, subsection (9) of section 166.231, Florida
16 Statutes, as amended by this act, is repealed, and subsections
17 (2), (5), (7), and (10) of that section are amended to read:
18 166.231 Municipalities; public service tax.--
19 (2) Services competitive with those enumerated in
20 subsection (1) or subsection (9), as defined by ordinance,
21 shall be taxed on a comparable base at the same rates.
22 However, fuel oil shall be taxed at a rate not to exceed 4
23 cents per gallon. However, for municipalities levying less
24 than the maximum rate allowable in subsection (1), the maximum
25 tax on fuel oil shall bear the same proportion to 4 cents
26 which the tax rate levied under subsection (1) bears to the
27 maximum rate allowable in subsection (1).
28 (5) Purchases by the United States Government, this
29 state, and all counties, school districts, and municipalities
30 of the state, and by public bodies exempted by law or court
31 order, are exempt from the tax authorized by this section. A
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1 municipality may exempt from the tax imposed by this section
2 the purchase of taxable items by any other public body as
3 defined in s. 1.01, or by a nonprofit corporation or
4 cooperative association organized under chapter 617 which
5 provides water utility services to no more than 13,500
6 equivalent residential units, ownership of which will revert
7 to a political subdivision upon retirement of all outstanding
8 indebtedness, and shall exempt purchases by any recognized
9 church in this state for use exclusively for church purposes,
10 and shall exempt from the tax authorized by subsection (9)
11 purchases made by any religious institution that possesses a
12 consumer certificate of exemption issued under chapter 212.
13 (7) The tax authorized hereunder shall be collected by
14 the seller of the taxable item from the purchaser at the time
15 of the payment for such service. The seller shall remit the
16 taxes collected to the municipality in the manner prescribed
17 by ordinance, except that remittance of taxes by sellers of
18 telecommunication services shall be governed by paragraph
19 (9)(f). Except as otherwise provided in ss. 166.233 and
20 166.234, the seller shall be liable for taxes that are due and
21 not remitted to the municipality. This shall not bar the
22 seller from recovering such taxes from purchasers; however,
23 the universities in the State University System shall not be
24 deemed a seller of any item otherwise taxable hereunder when
25 such item is provided to university residences incidental to
26 the provision of educational services.
27 (10) A purchaser who claims an exemption under
28 subsection (4) or, subsection (5), or paragraph (9)(e) shall
29 certify to the seller that he or she qualifies for the
30 exemption, which certification may encompass all purchases
31 after a specified date or other multiple purchases. For
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1 purchases made under paragraph (9)(e) which are exempted, upon
2 the presentation of a certificate, from the tax imposed by
3 chapter 212, the certification required by this subsection may
4 be satisfied by presentation of a certificate that satisfies
5 the requirements of chapter 212. A seller accepting the
6 certification required by this subsection is relieved of the
7 obligation to collect and remit tax; however, a governmental
8 body that is exempt from the tax authorized by this section
9 shall not be required to furnish such certification, and a
10 seller is not required to collect tax from such an exempt
11 governmental body.
12 Section 39. Effective January 1, 2002, paragraph (c)
13 of subsection (1) and subsection (2) of section 166.233,
14 Florida Statutes, are amended to read:
15 166.233 Public service tax; effective dates;
16 procedures for informing sellers of tax levies and related
17 information.--
18 (1) As used in this section and ss. 166.231, 166.232,
19 and 166.234:
20 (c) "Levy" means and includes the imposition of a tax
21 under s. 166.231 or s. 166.232 and, all changes in the rate of
22 a tax imposed under either of those sections, and all changes
23 of election under s. 166.231(9)(a).
24 (2)(a) A tax levy must be adopted by ordinance, and
25 the effective date of every levy or repeal thereof must be a
26 subsequent January 1, April 1, July 1, or October 1. A
27 municipality shall notify the department of the adoption or
28 repeal of a levy at least 120 days before the effective date
29 thereof. Such notification must be furnished on a form
30 prescribed by the department and must specify the services
31 taxed under the authority of s. 166.231 or s. 166.232,
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1 including any election under s. 166.231(9)(a), the rate of tax
2 applied to each service, the effective date of the levy or
3 repeal thereof, and the name, mailing address, and telephone
4 number of a person designated by the municipality to respond
5 to inquiries concerning the tax. The department shall maintain
6 this information for the purpose of responding to inquiries
7 with respect thereto, and any person may, in writing, request
8 such information from the department. For purposes of this
9 section, a response to such a person is timely if in writing
10 and dated no later than 20 days after the receipt of the
11 request. The department shall charge such persons a fee to
12 recover the actual cost of maintaining and furnishing such
13 information. The department has no liability for any loss of
14 or decrease in revenue by reason of any error, omission, or
15 untimely action that results in the nonpayment of the tax
16 imposed under s. 166.231 or s. 166.232. The provisions of this
17 paragraph which prescribe effective dates and require
18 municipalities to furnish notifications to the department do
19 not apply to taxes levied on service, other than
20 telecommunication service, provided by the municipality
21 levying the tax or by a separate utility authority, board, or
22 commission of the municipality.
23 (b) The department may contract with a private entity
24 to maintain and furnish the information described in paragraph
25 (a); however, the department shall establish the fee charged
26 to persons requesting that information.
27 Section 40. Subsections (3) and (4) of section 203.01,
28 Florida Statutes, are amended to read:
29 203.01 Tax on gross receipts for utility services.--
30 (3) The term "gross receipts" as used herein does not
31 include gross receipts of any person derived from:
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1 (a) The sale of natural gas to a public or private
2 utility, including a municipal corporation or rural electric
3 cooperative association, either for resale or for use as fuel
4 in the generation of electricity;
5 (b) The sale of electricity to a public or private
6 utility, including a municipal corporation or rural electric
7 cooperative association, for resale within the state, or as
8 part of an electrical interchange agreement or contract
9 between such utilities for the purpose of transferring more
10 economically generated power; or
11 (c) The sale of telecommunication services for resale
12 of telecommunication services wholly or partially within this
13 state, which includes, for purposes of this subsection, the
14 sale of telecommunication services to a person reselling such
15 telecommunication services by way of a prepaid calling
16 arrangement as defined in s. 212.05(1)(e)1.a.;
17
18 provided the person deriving gross receipts from such sale
19 demonstrates that a resale in fact occurred and complies with
20 the following requirements: A resale in this state must be in
21 strict compliance with the rules and regulations of the
22 Department of Revenue; and any person making a sale for resale
23 in this state which is not in strict compliance with the rules
24 and regulations of the Department of Revenue shall be liable
25 for and pay the tax. Any person making a sale for resale in
26 this state may, through an informal protest provided for in s.
27 213.21 and the rules of the Department of Revenue, provide the
28 department with evidence of the exempt status of a sale. The
29 department shall adopt rules which provide that valid proof
30 and documentation of the resale in this state by a person
31 making the sale for resale in this state will be accepted by
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1 the department when submitted during the protest period but
2 will not be accepted when submitted in any proceeding under
3 chapter 120 or any circuit court action instituted under
4 chapter 72.
5 (4) Gross receipts subject to the tax imposed by this
6 section shall not include receipts from sales or leases of
7 telecommunications service for use in the conduct of a
8 telecommunications service for hire or otherwise for resale,
9 including resale of telecommunication services paid by using a
10 prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.
11 Section 41. Effective January 1, 2002, and applicable
12 to communications services reflected on bills dated on or
13 after that date, section 203.01, Florida Statutes, as amended
14 by this act, is amended to read:
15 203.01 Tax on gross receipts for utility and
16 communications services.--
17 (1)(a)1. Every person that receives payment for any
18 utility service shall report by the last day of each month to
19 the Department of Revenue, under oath of the secretary or some
20 other officer of such person, the total amount of gross
21 receipts derived from business done within this state, or
22 between points within this state, for the preceding month and,
23 at the same time, shall pay into the State Treasury an amount
24 equal to a percentage of such gross receipts at the rate set
25 forth in paragraph (b). Such collections shall be certified
26 by the Comptroller upon the request of the State Board of
27 Education.
28 2. A tax is levied on communications services as
29 defined in s. 202.11(3). Such tax shall be applied to the same
30 services and transactions as are subject to taxation under
31 chapter 202, and to communications services that are subject
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1 to the exemption provided in s. 202.125(1). Such tax shall be
2 applied to the sales price of communications services when
3 sold at retail and to the actual cost of operating substitute
4 communications systems, as such terms are defined in s.
5 202.11, shall be due and payable at the same time as the taxes
6 imposed pursuant to chapter 202, and shall be administered and
7 collected pursuant to the provisions of chapter 202.
8 (b) Beginning July 1, 1992, and thereafter, The rate
9 applied to utility services shall be 2.5 percent. The rate
10 applied to communications services shall be 2.2 percent.
11 (c) Any person who purchases, installs, rents, or
12 leases a telephone system or telecommunication system for his
13 or her own use to provide that person with telephone service
14 or telecommunication service which is a substitute for any
15 telephone company switched service or a substitute for any
16 dedicated facility by which a telephone company provides a
17 communication path shall register with the Department of
18 Revenue and pay into the State Treasury a yearly amount equal
19 to a percentage of the actual cost of operating such system at
20 the rate set forth in paragraph (b). "Actual cost" includes,
21 but is not limited to, depreciation, interest, maintenance,
22 repair, and other expenses directly attributable to the
23 operation of such system. For purposes of this paragraph, the
24 depreciation expense to be included in actual cost shall be
25 the depreciation expense claimed for federal income tax
26 purposes. The total amount of any payment required by a lease
27 or rental contract or agreement shall be included within the
28 actual cost. The provisions of this paragraph do not apply to
29 the use by any local telephone company or any
30 telecommunication carrier of its own telephone system or
31 telecommunication system to conduct a telecommunication
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1 service for hire or to the use of any radio system operated by
2 any county or municipality or by the state or any political
3 subdivision thereof. If a system described in this paragraph
4 is located in more than one state, the actual cost of such
5 system for purposes of this paragraph shall be the actual cost
6 of the system's equipment located in Florida. The term
7 "telecommunications carrier" specifically includes cellular
8 telephone carriers and other radio common carriers.
9 (c)(d) Electricity produced by cogeneration or by
10 small power producers which is transmitted and distributed by
11 a public utility between two locations of a customer of the
12 utility pursuant to s. 366.051 is subject to the tax imposed
13 by this section. The tax shall be applied to the cost price
14 of such electricity as provided in s. 212.02(4) and shall be
15 paid each month by the producer of such electricity.
16 (d)(e) Electricity produced by cogeneration or by
17 small power producers during the 12-month period ending June
18 30 of each year which is in excess of nontaxable electricity
19 produced during the 12-month period ending June 30, 1990, is
20 subject to the tax imposed by this section. The tax shall be
21 applied to the cost price of such electricity as provided in
22 s. 212.02(4) and shall be paid each month, beginning with the
23 month in which total production exceeds the production of
24 nontaxable electricity for the 12-month period ending June 30,
25 1990. For purposes of this paragraph, "nontaxable
26 electricity" means electricity produced by cogeneration or by
27 small power producers which is not subject to tax under
28 paragraph (c) (d). Taxes paid pursuant to paragraph (c) (d)
29 may be credited against taxes due under this paragraph.
30 Electricity generated as part of an industrial manufacturing
31 process which manufactures products from phosphate rock, raw
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1 wood fiber, paper, citrus or any agricultural product shall
2 not be subject to the tax imposed by this paragraph.
3 "Industrial manufacturing process" means the entire process
4 conducted at the location where the process takes place.
5 (e)(f) Any person other than a cogenerator or small
6 power producer described in paragraph (d) (e) who produces for
7 his or her own use electrical energy which is a substitute for
8 electrical energy produced by an electric utility as defined
9 in s. 366.02 is subject to the tax imposed by this section.
10 The tax shall be applied to the cost price of such electrical
11 energy as provided in s. 212.02(4) and shall be paid each
12 month. The provisions of this paragraph do not apply to any
13 electrical energy produced and used by an electric utility.
14 (2)(a) In addition to any other penalty provided by
15 law, any person who fails to timely report and pay any tax
16 imposed on gross receipts from utility services under this
17 chapter shall pay a penalty equal to 10 percent of any unpaid
18 tax, if the failure is for less than 31 days, plus an
19 additional 10 percent of any unpaid tax for each additional 30
20 days or fraction thereof. However, such penalty may not be
21 less than $10 or exceed a total of 50 percent in the aggregate
22 of any unpaid tax.
23 (b) In addition to any other penalty provided by law,
24 any person who falsely or fraudulently reports or unlawfully
25 attempts to evade paying any tax imposed on gross receipts
26 from utility services under this chapter shall pay a penalty
27 equal to 100 percent of any tax due and is guilty of a
28 misdemeanor of the second degree, punishable as provided under
29 s. 775.082 or s. 775.083.
30 (3) The term "gross receipts" as used herein does not
31 include gross receipts of any person derived from:
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1 (a) The sale of natural gas to a public or private
2 utility, including a municipal corporation or rural electric
3 cooperative association, either for resale or for use as fuel
4 in the generation of electricity; or
5 (b) The sale of electricity to a public or private
6 utility, including a municipal corporation or rural electric
7 cooperative association, for resale within the state, or as
8 part of an electrical interchange agreement or contract
9 between such utilities for the purpose of transferring more
10 economically generated power; or
11 (c) The sale of telecommunication services for resale
12 of telecommunication services wholly or partially within this
13 state, which includes, for purposes of this subsection, the
14 sale of telecommunication services to a person reselling such
15 telecommunication services by way of a prepaid calling
16 arrangement as defined in s. 212.05(1)(e)1.a.;
17
18 provided the person deriving gross receipts from such sale
19 demonstrates that a resale in fact occurred and complies with
20 the following requirements: A resale in this state must be in
21 strict compliance with the rules and regulations of the
22 Department of Revenue; and any person making a sale for resale
23 in this state which is not in strict compliance with the rules
24 and regulations of the Department of Revenue shall be liable
25 for and pay the tax. Any person making a sale for resale in
26 this state may, through an informal protest provided for in s.
27 213.21 and the rules of the Department of Revenue, provide the
28 department with evidence of the exempt status of a sale. The
29 department shall adopt rules which provide that valid proof
30 and documentation of the resale in this state by a person
31 making the sale for resale in this state will be accepted by
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1 the department when submitted during the protest period but
2 will not be accepted when submitted in any proceeding under
3 chapter 120 or any circuit court action instituted under
4 chapter 72.
5 (4) Gross receipts subject to the tax imposed by this
6 section shall not include receipts from sales or leases of
7 telecommunications service for use in the conduct of a
8 telecommunications service for hire or otherwise for resale,
9 including resale of telecommunication services paid by using a
10 prepaid calling arrangement as defined in s. 212.05(1)(e)1.a.
11 (4)(5) The tax imposed pursuant to this chapter part
12 relating to the provision of any utility services at the
13 option of the person supplying the taxable services may be
14 separately stated as Florida gross receipts tax on the total
15 amount of any bill, invoice, or other tangible evidence of the
16 provision of such taxable services and may be added as a
17 component part of the total charge. Whenever a provider of
18 taxable services elects to separately state such tax as a
19 component of the charge for the provision of such taxable
20 services, every person, including all governmental units,
21 shall remit the tax to the person who provides such taxable
22 services as a part of the total bill, and the tax is a
23 component part of the debt of the purchaser to the person who
24 provides such taxable services until paid and, if unpaid, is
25 recoverable at law in the same manner as any other part of the
26 charge for such taxable services. For a utility, the decision
27 to separately state any increase in the rate of tax imposed by
28 this chapter part which is effective after December 31, 1989,
29 and the ability to recover the increased charge from the
30 customer shall not be subject to regulatory approval.
31
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1 (5)(6) The tax is imposed upon every person for the
2 privilege of conducting a utility or communications services
3 business, and each provider of the taxable services remains
4 fully and completely liable for the tax, even if the tax is
5 separately stated as a line item or component of the total
6 bill.
7 (6)(7) Any person who provides such services and who
8 fails, neglects, or refuses to remit the tax imposed in this
9 chapter part, either by himself or herself, or through agents
10 or employees, is liable for the tax and is guilty of a
11 misdemeanor of the first degree, punishable as provided in s.
12 775.082 or s. 775.083.
13 (7)(8) Gross receipts subject to the tax imposed by
14 this section for the provision of electricity shall include
15 receipts from monthly customer charges or monthly customer
16 facility charges.
17 (9)(a) If the sale of a taxable telecommunication
18 service also involves the sale of commercial or cable
19 television service exempt under the provision of s.
20 203.012(2)(b)2., the tax shall be applied to the value of the
21 taxable service when it is sold separately.
22 (b) If the company does not offer this service
23 separately, the consideration paid shall be separately
24 identified and stated with respect to the taxable and exempt
25 portions of the transaction as a condition of the exemption.
26 (c) The amounts identified as taxable in paragraph (b)
27 shall not be less than the statewide average tariff rates set
28 forth by the local exchange telecommunications companies in
29 the tariffs filed with the Public Service Commission on
30 January 1, 1995, and on January 1 of each year thereafter for
31 the equivalent services subject to the provisions of this
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1 section. The Public Service Commission shall publish the
2 statewide average tariff rates for commonly used services
3 annually, beginning on January 1, 1996.
4 (8)(10) Notwithstanding the provisions of subsection
5 (4) (5) and s. 212.07(2), sums that were charged or billed as
6 taxes under this section and chapter 212 and that were
7 remitted to the state in full as taxes shall not be subject to
8 refund by the state or by the utility or other person that
9 which remitted the sums, when the amount remitted was not in
10 excess of the amount of tax imposed by chapter 212 and this
11 section.
12 Section 42. Effective January 1, 2002, section
13 203.012, Florida Statutes, is amended to read:
14 203.012 Definitions.--As used in this chapter:
15 (1) The term "access charge" or "right of access"
16 means any charge to any person for the right to use or for the
17 use of a telephone system which includes equipment,
18 facilities, or services to originate or terminate any of the
19 services defined in subsection (4), subsection (5), subsection
20 (6), or subsection (7) and which specifically includes
21 customer access line charges, which includes the gross amount
22 paid by subscribers and users in this state for access into
23 the intrastate or interstate interexchange network as
24 authorized by the Federal Communications Commission or the
25 Florida Public Service Commission.
26 (2)(a) Gross receipts from telecommunication services
27 include the gross receipts for all telecommunication services
28 of whatever nature, including, but not limited to, access
29 charges and charges for right of access; residential and
30 business 1-party, 2-party, and 4-party rotary charges; centrex
31 charges; directory assistance charges; public telephone
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1 charges; touch-tone charges; emergency number charges; private
2 branch exchange message charges; public announcement service
3 charges; dial-it charges; local area data transport charges;
4 key lines charges; private branch exchange trunk-flat rate
5 charges; and directory listing charges other than yellow-page
6 classified listing charges.
7 (b) Gross receipts for telecommunication services do
8 not include:
9 1. Charges for customer premises equipment, including
10 such equipment that is leased or rented by the customer from
11 any source;
12 2. Charges made to the public for commercial or cable
13 television, unless it is used for two-way communication;
14 however, if such two-way communication service is separately
15 billed, only the charges made for two-way communication
16 service will be subject to tax hereunder;
17 3. Charges made by hotels and motels, which are
18 required under the provisions of s. 212.03 to collect
19 transient rentals tax from tenants and lessees, for local
20 telephone service or toll telephone service, when such charge
21 occurs incidental to the right of occupancy in such hotel or
22 motel;
23 4. Connection and disconnection charges; move or
24 change charges; suspension of service charges; and service
25 order, number change, and restoration charges; or
26 5. Charges for services or items of equipment supplied
27 by providers of the telecommunication services described in
28 paragraph (5)(b), such as maintenance charges, equipment
29 sales, or rental which are incidental to the provision of such
30 telecommunication services, provided such charges are
31 separately stated, itemized, or described on the bill,
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1 invoice, or other tangible evidence of the provision of such
2 service.
3 (3) The term "local telephone service" means:
4 (a) The access to a local telephone system, and the
5 privilege of telephonic-quality communication with
6 substantially all persons having telephone or radio telephone
7 stations constituting a part of such local telephone system;
8 or
9 (b) Any facility or service provided in connection
10 with a service described in paragraph (a).
11
12 The term "local telephone service" does not include any
13 service which is a toll telephone service; private
14 communication service; cellular mobile telephone or
15 telecommunication service; specialized mobile radio, or pagers
16 and paging, service, including but not limited to "beepers"
17 and any other form of mobile and portable one-way or two-way
18 communication; or teletypewriter service.
19 (4) The term "private communication service" means:
20 (a) A communication service furnished to a subscriber
21 or user that entitles the subscriber or user to exclusive or
22 priority use of a communication channel or groups of channels,
23 or to the use of an intercommunication system for the
24 subscriber's stations, regardless of whether such channel,
25 groups of channels, or intercommunication system may be
26 connected through switching with a service described in
27 subsection (3), subsection (6), or subsection (7);
28 (b) Switching capacity, extension lines, and stations,
29 or other associated services which are provided in connection
30 with, and which are necessary or unique to the use of,
31 channels or systems described in paragraph (a); or
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1 (c) The channel mileage which connects a telephone
2 station located outside a local telephone system area with a
3 central office in such local telephone system.
4 (5) The term "telecommunication service" means:
5 (a) Local telephone service, toll telephone service,
6 telegram or telegraph service, teletypewriter service, or
7 private communication service; or
8 (b) Cellular mobile telephone or telecommunication
9 service; or specialized mobile radio, and pagers and paging,
10 service, including but not limited to "beepers" and any other
11 form of mobile and portable one-way or two-way communication;
12 but does not include services or equipment incidental to
13 telecommunication services enumerated in this paragraph such
14 as maintenance of customer premises equipment, whether owned
15 by the customer or not, or equipment sales or rental for which
16 charges are separately stated, itemized, or described on the
17 bill, invoice, or other tangible evidence of the provision of
18 such service.
19
20 The term "telecommunication service" does not include any
21 Internet access service, electronic mail service, electronic
22 bulletin board service, or similar on-line computer service.
23 (6) The term "teletypewriter service" means the access
24 from a teletypewriter, telephone, or other data station of
25 which such station is a part, and the privilege of
26 intercommunication by such station with substantially all
27 persons having teletypewriter, telephone, or other data
28 stations constituting a part of the same teletypewriter
29 system, to which the subscriber or user is entitled upon
30 payment of a charge or charges, whether such charge or charges
31 are determined as a flat periodic amount, on the basis of
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1 distance and elapsed transmission time, or some other method.
2 The term "teletypewriter service" does not include local
3 telephone service or toll telephone service.
4 (7) The term "toll telephone service" means:
5 (a) A telephonic-quality communication for which there
6 is a toll charge which varies in amount with the distance and
7 elapsed transmission time of each individual communication; or
8 (b) A service which entitles the subscriber or user,
9 upon the payment of a periodic charge which is determined as a
10 flat amount or upon the basis of total elapsed transmission
11 time, to the privilege of an unlimited number of telephonic
12 communications to or from all or a substantial portion of the
13 persons having telephone or radio telephone stations in a
14 specified area which is outside the local telephone system
15 area in which the station provided with this service is
16 located.
17
18 The term "toll telephone service" includes interstate and
19 intrastate wide-area telephone service charges.
20 (8) The term "interstate," as applied to
21 telecommunication services, means originating in this state
22 but not terminating in this state, or terminating in this
23 state but not originating in this state.
24 (1)(9) The term "Utility service" means electricity
25 for light, heat, or power; and natural or manufactured gas for
26 light, heat, or power; or telecommunication services.
27 (2)(10) The term "Person" means any person as defined
28 in s. 212.02.
29 Section 43. Effective January 1, 2002, sections
30 203.013, 203.60, 203.61, 203.62, and 203.63, Florida Statutes,
31 are repealed.
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1 Section 44. Paragraph (e) of subsection (1) of section
2 212.05, Florida Statutes, is amended to read:
3 212.05 Sales, storage, use tax.--It is hereby declared
4 to be the legislative intent that every person is exercising a
5 taxable privilege who engages in the business of selling
6 tangible personal property at retail in this state, including
7 the business of making mail order sales, or who rents or
8 furnishes any of the things or services taxable under this
9 chapter, or who stores for use or consumption in this state
10 any item or article of tangible personal property as defined
11 herein and who leases or rents such property within the state.
12 (1) For the exercise of such privilege, a tax is
13 levied on each taxable transaction or incident, which tax is
14 due and payable as follows:
15 (e)1. At the rate of 6 percent on charges for:
16 a. All telegraph messages and long-distance telephone
17 calls beginning and terminating in this state,
18 telecommunication service as defined in s. 203.012, and those
19 services described in s. 203.012(2)(a), except that the tax
20 rate for charges for telecommunication service other than
21 charges for prepaid calling arrangements is 7 percent. The tax
22 on charges for prepaid calling arrangements calls made with a
23 prepaid telephone calling card shall be collected at the time
24 of sale and remitted by the selling dealer selling or
25 recharging a prepaid telephone card.
26 (I) "Prepaid calling arrangement" means the separately
27 stated retail sale by advance payment of communications
28 services that consist exclusively of telephone calls
29 originated by using an access number, authorization code, or
30 other means that may be manually, electronically, or otherwise
31 entered and that are sold in predetermined units or dollars
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1 whose number declines with use in a known amount. A prepaid
2 telephone card or authorization number means the right to
3 exclusively make telephone calls that must be paid for in
4 advance and that enable the origination of calls using an
5 access number, prepaid mobile account, or authorization code,
6 whether manually or electronically dialed.
7 (II) If the sale or recharge of the prepaid telephone
8 calling arrangement card does not take place at the dealer's
9 place of business, it shall be deemed to take place at the
10 customer's shipping address or, if no item is shipped, at the
11 customer's address or the location associated with the
12 customer's mobile telephone number.
13 (III) The sale or recharge of a prepaid calling
14 arrangement shall be treated as a sale of tangible personal
15 property for purposes of this chapter, whether or not a
16 tangible item evidencing such arrangement is furnished to the
17 purchaser, and such sale within this state phone card
18 constitutes property in this state and subjects the selling
19 dealer to the jurisdiction of this state for purposes of this
20 subsection. Notwithstanding any other provision of this
21 sub-sub-subparagraph, the sale of telecommunication services
22 to a person who furnishes telecommunication services pursuant
23 to a prepaid calling arrangement is deemed a sale for resale,
24 and a dealer selling telecommunication services to such a
25 person shall accept a resale certificate in lieu of the tax,
26 in accordance with rules of the department.
27 b. Any television system program service.
28 c. The installation of telecommunication and
29 telegraphic equipment.
30 d. Electrical power or energy, except that the tax
31 rate for charges for electrical power or energy is 7 percent.
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1 2. For purposes of this chapter, "television system
2 program service" means the transmitting, by any means, of any
3 audio or video signal to a subscriber for other than
4 retransmission, or the installing, connecting, reconnecting,
5 disconnecting, moving, or changing of any equipment related to
6 such service. For purposes of this chapter, the term
7 "telecommunication service" does not include local service
8 provided through a pay telephone. The provisions of s.
9 212.17(3), regarding credit for tax paid on charges
10 subsequently found to be worthless, shall be equally
11 applicable to any tax paid under the provisions of this
12 section on charges for prepaid calling arrangements,
13 telecommunication or telegraph services, or electric power
14 subsequently found to be uncollectible. The word "charges" in
15 this paragraph does not include any excise or similar tax
16 levied by the Federal Government, any political subdivision of
17 the state, or any municipality upon the purchase, or sale, or
18 recharge of prepaid calling arrangements or upon the purchase
19 or sale of telecommunication, television system program, or
20 telegraph service or electric power, which tax is collected by
21 the seller from the purchaser.
22 3. Telegraph messages and telecommunication services
23 which originate or terminate in this state, other than
24 interstate private communication services, and are billed to a
25 customer, telephone number, or device located within this
26 state are taxable under this paragraph. Interstate private
27 communication services are taxable under this paragraph as
28 follows:
29 a. One hundred percent of the charge imposed at each
30 channel termination point within this state;
31
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1 b. One hundred percent of the charge imposed for the
2 total channel mileage between each channel termination point
3 within this state; and
4 c. The portion of the interstate interoffice channel
5 mileage charge as determined by multiplying said charge times
6 a fraction, the numerator of which is the air miles between
7 the last channel termination point in this state and the
8 vertical and horizontal coordinates, 7856 and 1756,
9 respectively, and the denominator of which is the air miles
10 between the last channel termination point in this state and
11 the first channel termination point outside this state. The
12 denominator of this fraction shall be adjusted, if necessary,
13 by adding the numerator of said fraction to similarly
14 determined air miles in the state in which the other channel
15 termination point is located, so that the summation of the
16 apportionment factor for this state and the apportionment
17 factor for the other state is not greater than one, to ensure
18 that no more than 100 percent of the interstate interoffice
19 channel mileage charge can be taxed by this state and another
20 state.
21 4. The tax imposed pursuant to this paragraph shall
22 not exceed $50,000 per calendar year on charges to any person
23 for interstate telecommunications services defined in s.
24 203.012(4) and (7)(b), if the majority of such services used
25 by such person are for communications originating outside of
26 this state and terminating in this state. This exemption
27 shall only be granted to holders of a direct pay permit issued
28 pursuant to this subparagraph. No refunds shall be given for
29 taxes paid prior to receiving a direct pay permit. Upon
30 application, the department may issue a direct pay permit to
31 the purchaser of telecommunications services authorizing such
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1 purchaser to pay tax on such services directly to the
2 department. Any vendor furnishing telecommunications services
3 to the holder of a valid direct pay permit shall be relieved
4 of the obligation to collect and remit the tax on such
5 service. Tax payments and returns pursuant to a direct pay
6 permit shall be monthly. For purposes of this subparagraph,
7 the term "person" shall be limited to a single legal entity
8 and shall not be construed as meaning a group or combination
9 of affiliated entities or entities controlled by one person or
10 group of persons.
11 5. If the sale of a television system program service,
12 as defined in this paragraph, also involves the sale of an
13 item exempt under s. 212.08(7)(j), the tax shall be applied to
14 the value of the taxable service when it is sold separately.
15 If the company does not offer this service separately, the
16 consideration paid shall be separately identified and stated
17 with respect to the taxable and exempt portions of the
18 transaction as a condition of the exemption, except that the
19 amount identified as taxable shall not be less than the cost
20 of the service.
21 Section 45. Effective July 1, 2000, all taxes that
22 have been collected pursuant to section 212.05(1)(e), Florida
23 Statutes, at the point of sale on prepaid calling arrangements
24 before July 1, 2000, must be remitted, and taxes that have
25 been collected at the point of sale on prepaid calling
26 arrangements and remitted before July 1, 2000, are not subject
27 to refund. Any taxes that were not collected pursuant to
28 section 212.05(1)(e) before July 1, 2000, at point of sale on
29 prepaid calling arrangements need not be paid and are
30 forgiven.
31
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1 Section 46. Paragraph (b) of subsection (2) of section
2 212.054, Florida Statutes, is amended to read:
3 212.054 Discretionary sales surtax; limitations,
4 administration, and collection.--
5 (2)
6 (b) However:
7 1. The tax on any sales amount above $5,000 on any
8 item of tangible personal property and on long-distance
9 telephone service shall not be subject to the surtax.
10 However, charges for prepaid calling arrangements, as defined
11 in s. 212.05(1)(e)1.a., shall be subject to the surtax. For
12 purposes of administering the $5,000 limitation on an item of
13 tangible personal property, if two or more taxable items of
14 tangible personal property are sold to the same purchaser at
15 the same time and, under generally accepted business practice
16 or industry standards or usage, are normally sold in bulk or
17 are items that, when assembled, comprise a working unit or
18 part of a working unit, such items must be considered a single
19 item for purposes of the $5,000 limitation when supported by a
20 charge ticket, sales slip, invoice, or other tangible evidence
21 of a single sale or rental. The limitation provided in this
22 subparagraph does not apply to the sale of any other service.
23 2. In the case of utility, telecommunication, or
24 television system program services billed on or after the
25 effective date of any such surtax, the entire amount of the
26 charge tax for utility, telecommunication, or television
27 system program services shall be subject to the surtax. In
28 the case of utility, telecommunication, or television system
29 program services billed after the last day the surtax is in
30 effect, the entire amount of the charge tax on said items
31 shall not be subject to the surtax.
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1 3. In the case of written contracts which are signed
2 prior to the effective date of any such surtax for the
3 construction of improvements to real property or for
4 remodeling of existing structures, the surtax shall be paid by
5 the contractor responsible for the performance of the
6 contract. However, the contractor may apply for one refund of
7 any such surtax paid on materials necessary for the completion
8 of the contract. Any application for refund shall be made no
9 later than 15 months following initial imposition of the
10 surtax in that county. The application for refund shall be in
11 the manner prescribed by the department by rule. A complete
12 application shall include proof of the written contract and of
13 payment of the surtax. The application shall contain a sworn
14 statement, signed by the applicant or its representative,
15 attesting to the validity of the application. The department
16 shall, within 30 days after approval of a complete
17 application, certify to the county information necessary for
18 issuance of a refund to the applicant. Counties are hereby
19 authorized to issue refunds for this purpose and shall set
20 aside from the proceeds of the surtax a sum sufficient to pay
21 any refund lawfully due. Any person who fraudulently obtains
22 or attempts to obtain a refund pursuant to this subparagraph,
23 in addition to being liable for repayment of any refund
24 fraudulently obtained plus a mandatory penalty of 100 percent
25 of the refund, is guilty of a felony of the third degree,
26 punishable as provided in s. 775.082, s. 775.083, or s.
27 775.084.
28 4. In the case of any vessel, railroad, or motor
29 vehicle common carrier entitled to partial exemption from tax
30 imposed under this chapter pursuant to s. 212.08(4), (8), or
31 (9), the basis for imposition of surtax shall be the same as
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1 provided in s. 212.08 and the ratio shall be applied each
2 month to total purchases in this state of property qualified
3 for proration which is delivered or sold in the taxing county
4 to establish the portion used and consumed in intracounty
5 movement and subject to surtax.
6 Section 47. Effective January 1, 2002, and applicable
7 to communications services reflected on bills dated on or
8 after that date, paragraph (e) of subsection (1) of section
9 212.05, Florida Statutes, as amended by this act, is amended
10 to read:
11 212.05 Sales, storage, use tax.--It is hereby declared
12 to be the legislative intent that every person is exercising a
13 taxable privilege who engages in the business of selling
14 tangible personal property at retail in this state, including
15 the business of making mail order sales, or who rents or
16 furnishes any of the things or services taxable under this
17 chapter, or who stores for use or consumption in this state
18 any item or article of tangible personal property as defined
19 herein and who leases or rents such property within the state.
20 (1) For the exercise of such privilege, a tax is
21 levied on each taxable transaction or incident, which tax is
22 due and payable as follows:
23 (e)1. At the rate of 6 percent on charges for:
24 a. Prepaid calling arrangements. All telegraph
25 messages and long-distance telephone calls beginning and
26 terminating in this state, telecommunication service as
27 defined in s. 203.012, and those services described in s.
28 203.012(2)(a), except that the tax rate for charges for
29 telecommunication service other than charges for prepaid
30 calling arrangements is 7 percent. The tax on charges for
31
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1 prepaid calling arrangements shall be collected at the time of
2 sale and remitted by the selling dealer.
3 (I) "Prepaid calling arrangement" means the separately
4 stated retail sale by advance payment of communications
5 services that consist exclusively of telephone calls
6 originated by using an access number, authorization code, or
7 other means that may be manually, electronically, or otherwise
8 entered and that are sold in predetermined units or dollars
9 whose number declines with use in a known amount.
10 (II) If the sale or recharge of the prepaid calling
11 arrangement does not take place at the dealer's place of
12 business, it shall be deemed to take place at the customer's
13 shipping address or, if no item is shipped, at the customer's
14 address or the location associated with the customer's mobile
15 telephone number.
16 (III) The sale or recharge of a prepaid calling
17 arrangement shall be treated as a sale of tangible personal
18 property for purposes of this chapter, whether or not a
19 tangible item evidencing such arrangement is furnished to the
20 purchaser, and such sale within this state subjects the
21 selling dealer to the jurisdiction of this state for purposes
22 of this subsection. Notwithstanding any other provision of
23 this sub-sub-subparagraph, the sale of telecommunication
24 services to a person who furnishes telecommunication services
25 pursuant to a prepaid calling arrangement is deemed a sale for
26 resale, and a dealer selling telecommunication services to
27 such a person shall accept a resale certificate in lieu of the
28 tax, in accordance with rules of the department.
29 b. Any television system program service.
30 b.c. The installation of telecommunication and
31 telegraphic equipment.
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1 c.d. Electrical power or energy, except that the tax
2 rate for charges for electrical power or energy is 7 percent.
3 2. For purposes of this chapter, "television system
4 program service" means the transmitting, by any means, of any
5 audio or video signal to a subscriber for other than
6 retransmission, or the installing, connecting, reconnecting,
7 disconnecting, moving, or changing of any equipment related to
8 such service. For purposes of this chapter, the term
9 "telecommunication service" does not include local service
10 provided through a pay telephone. The provisions of s.
11 212.17(3), regarding credit for tax paid on charges
12 subsequently found to be worthless, shall be equally
13 applicable to any tax paid under the provisions of this
14 section on charges for prepaid calling arrangements,
15 telecommunication or telegraph services, or electric power
16 subsequently found to be uncollectible. The word "charges" in
17 this paragraph does not include any excise or similar tax
18 levied by the Federal Government, any political subdivision of
19 the state, or any municipality upon the purchase, sale, or
20 recharge of prepaid calling arrangements or upon the purchase
21 or sale of telecommunication, television system program, or
22 telegraph service or electric power, which tax is collected by
23 the seller from the purchaser.
24 3. Telegraph messages and telecommunication services
25 which originate or terminate in this state, other than
26 interstate private communication services, and are billed to a
27 customer, telephone number, or device located within this
28 state are taxable under this paragraph. Interstate private
29 communication services are taxable under this paragraph as
30 follows:
31
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1 a. One hundred percent of the charge imposed at each
2 channel termination point within this state;
3 b. One hundred percent of the charge imposed for the
4 total channel mileage between each channel termination point
5 within this state; and
6 c. The portion of the interstate interoffice channel
7 mileage charge as determined by multiplying said charge times
8 a fraction, the numerator of which is the air miles between
9 the last channel termination point in this state and the
10 vertical and horizontal coordinates, 7856 and 1756,
11 respectively, and the denominator of which is the air miles
12 between the last channel termination point in this state and
13 the first channel termination point outside this state. The
14 denominator of this fraction shall be adjusted, if necessary,
15 by adding the numerator of said fraction to similarly
16 determined air miles in the state in which the other channel
17 termination point is located, so that the summation of the
18 apportionment factor for this state and the apportionment
19 factor for the other state is not greater than one, to ensure
20 that no more than 100 percent of the interstate interoffice
21 channel mileage charge can be taxed by this state and another
22 state.
23 4. The tax imposed pursuant to this paragraph shall
24 not exceed $50,000 per calendar year on charges to any person
25 for interstate telecommunications services defined in s.
26 203.012(4) and (7)(b), if the majority of such services used
27 by such person are for communications originating outside of
28 this state and terminating in this state. This exemption
29 shall only be granted to holders of a direct pay permit issued
30 pursuant to this subparagraph. No refunds shall be given for
31 taxes paid prior to receiving a direct pay permit. Upon
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1 application, the department may issue a direct pay permit to
2 the purchaser of telecommunications services authorizing such
3 purchaser to pay tax on such services directly to the
4 department. Any vendor furnishing telecommunications services
5 to the holder of a valid direct pay permit shall be relieved
6 of the obligation to collect and remit the tax on such
7 service. Tax payments and returns pursuant to a direct pay
8 permit shall be monthly. For purposes of this subparagraph,
9 the term "person" shall be limited to a single legal entity
10 and shall not be construed as meaning a group or combination
11 of affiliated entities or entities controlled by one person or
12 group of persons.
13 5. If the sale of a television system program service,
14 as defined in this paragraph, also involves the sale of an
15 item exempt under s. 212.08(7)(j), the tax shall be applied to
16 the value of the taxable service when it is sold separately.
17 If the company does not offer this service separately, the
18 consideration paid shall be separately identified and stated
19 with respect to the taxable and exempt portions of the
20 transaction as a condition of the exemption, except that the
21 amount identified as taxable shall not be less than the cost
22 of the service.
23 Section 48. Effective January 1, 2002, and applicable
24 to communications services reflected on bills dated on or
25 after such date, paragraph (b) of subsection (2) and paragraph
26 (c) of subsection (3) of section 212.054, Florida Statutes, as
27 amended by this act, are amended to read:
28 212.054 Discretionary sales surtax; limitations,
29 administration, and collection.--
30 (2)
31 (b) However:
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1 1. The sales amount above $5,000 on any item of
2 tangible personal property and on long-distance telephone
3 service shall not be subject to the surtax. However, charges
4 for prepaid calling arrangements, as defined in s.
5 212.05(1)(e)1.a., shall be subject to the surtax. For purposes
6 of administering the $5,000 limitation on an item of tangible
7 personal property, if two or more taxable items of tangible
8 personal property are sold to the same purchaser at the same
9 time and, under generally accepted business practice or
10 industry standards or usage, are normally sold in bulk or are
11 items that, when assembled, comprise a working unit or part of
12 a working unit, such items must be considered a single item
13 for purposes of the $5,000 limitation when supported by a
14 charge ticket, sales slip, invoice, or other tangible evidence
15 of a single sale or rental. The limitation provided in this
16 subparagraph does not apply to the sale of any other service.
17 2. In the case of utility, telecommunication, or
18 television system program services billed on or after the
19 effective date of any such surtax, the entire amount of the
20 charge for utility, telecommunication, or television system
21 program services shall be subject to the surtax. In the case
22 of utility, telecommunication, or television system program
23 services billed after the last day the surtax is in effect,
24 the entire amount of the charge on said items shall not be
25 subject to the surtax. "Utility service," as used in this
26 section, does not include any communications services as
27 defined in chapter 202.
28 3. In the case of written contracts which are signed
29 prior to the effective date of any such surtax for the
30 construction of improvements to real property or for
31 remodeling of existing structures, the surtax shall be paid by
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1 the contractor responsible for the performance of the
2 contract. However, the contractor may apply for one refund of
3 any such surtax paid on materials necessary for the completion
4 of the contract. Any application for refund shall be made no
5 later than 15 months following initial imposition of the
6 surtax in that county. The application for refund shall be in
7 the manner prescribed by the department by rule. A complete
8 application shall include proof of the written contract and of
9 payment of the surtax. The application shall contain a sworn
10 statement, signed by the applicant or its representative,
11 attesting to the validity of the application. The department
12 shall, within 30 days after approval of a complete
13 application, certify to the county information necessary for
14 issuance of a refund to the applicant. Counties are hereby
15 authorized to issue refunds for this purpose and shall set
16 aside from the proceeds of the surtax a sum sufficient to pay
17 any refund lawfully due. Any person who fraudulently obtains
18 or attempts to obtain a refund pursuant to this subparagraph,
19 in addition to being liable for repayment of any refund
20 fraudulently obtained plus a mandatory penalty of 100 percent
21 of the refund, is guilty of a felony of the third degree,
22 punishable as provided in s. 775.082, s. 775.083, or s.
23 775.084.
24 4. In the case of any vessel, railroad, or motor
25 vehicle common carrier entitled to partial exemption from tax
26 imposed under this chapter pursuant to s. 212.08(4), (8), or
27 (9), the basis for imposition of surtax shall be the same as
28 provided in s. 212.08 and the ratio shall be applied each
29 month to total purchases in this state of property qualified
30 for proration which is delivered or sold in the taxing county
31
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1 to establish the portion used and consumed in intracounty
2 movement and subject to surtax.
3 (3) For the purpose of this section, a transaction
4 shall be deemed to have occurred in a county imposing the
5 surtax when:
6 (c) The consumer of utility or television system
7 program services is located in the county, or the
8 telecommunication services are provided to a location within
9 the county.
10 Section 49. Effective January 1, 2001, section
11 337.401, Florida Statutes, is amended to read:
12 337.401 Use of right-of-way for utilities subject to
13 regulation; permit; fees.--
14 (1) The department and local governmental entities,
15 referred to in ss. 337.401-337.404 as the "authority," that
16 have jurisdiction and control of public roads or publicly
17 owned rail corridors are authorized to prescribe and enforce
18 reasonable rules or regulations with reference to the placing
19 and maintaining along, across, or on any road or publicly
20 owned rail corridors under their respective jurisdictions any
21 electric transmission, telephone, or telegraph lines; pole
22 lines; poles; railways; ditches; sewers; water, heat, or gas
23 mains; pipelines; fences; gasoline tanks and pumps; or other
24 structures hereinafter referred to as the "utility."
25 (2) The authority may grant to any person who is a
26 resident of this state, or to any corporation which is
27 organized under the laws of this state or licensed to do
28 business within this state, the use of a right-of-way for the
29 utility in accordance with such rules or regulations as the
30 authority may adopt. No utility shall be installed, located,
31 or relocated unless authorized by a written permit issued by
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1 the authority. The permit shall require the permitholder to
2 be responsible for any damage resulting from the issuance of
3 such permit. The authority may initiate injunctive
4 proceedings as provided in s. 120.69 to enforce provisions of
5 this subsection or any rule or order issued or entered into
6 pursuant thereto.
7 (3)(a) Because federal and state law require the
8 nondiscriminatory treatment of providers of telecommunications
9 services and because of the desire to promote competition
10 among providers of telecommunications services, it is the
11 intent of the Legislature that municipalities and counties
12 treat telecommunications companies in a nondiscriminatory and
13 competitively neutral manner when imposing rules or
14 regulations governing the placement or maintenance of
15 telecommunications facilities in the public roads or
16 rights-of-way. Rules or regulations imposed by a municipality
17 or county relating to telecommunications companies placing or
18 maintaining telecommunications facilities in its roads or
19 rights-of-way must be generally applicable to all
20 telecommunications companies and, notwithstanding any other
21 law, may not require a telecommunications company to apply for
22 or enter into an individual license, franchise, or other
23 agreement with the municipality or county as a condition of
24 placing or maintaining telecommunications facilities in its
25 roads or rights-of-way. In addition to other reasonable rules
26 or regulations that a municipality or county may adopt
27 relating to the placement or maintenance of telecommunications
28 facilities in its roads or rights-of-way under this
29 subsection, a municipality or county may require a
30 telecommunications company that places or seeks to place
31 facilities in its roads or rights-of-way to register with the
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1 municipality or county and to provide the name of the
2 registrant; the name, address, and telephone number of a
3 contact person for the registrant; the number of the
4 registrant's current certificate of authorization issued by
5 the Florida Public Service Commission or the Federal
6 Communications Commission; and proof of insurance or
7 self-insuring status adequate to defend and cover claims.
8 (b) Each municipality and county retains the authority
9 to regulate and manage municipal and county roads or
10 rights-of-way in exercising its police power. Any rules or
11 regulations adopted by a municipality or county which govern
12 the occupation of its roads or rights-of-way by
13 telecommunications companies must be related to the placement
14 or maintenance of facilities in such roads or rights-of-way,
15 must be reasonable and nondiscriminatory, and may include only
16 those matters necessary to manage the roads or rights-of-way
17 of the municipality or county.
18 (c)1. It is the intention of the state to treat all
19 providers of communications services that use or occupy
20 municipal or charter county roads or rights-of-way for the
21 provision of communications services in a nondiscriminatory
22 and competitively neutral manner with respect to the payment
23 of permit fees. Certain providers of communications services
24 have been granted by general law the authority to offset
25 permit fees against franchise or other fees while other
26 providers of communications services have not been granted
27 this authority. In order to treat all providers of
28 communications services in a nondiscriminatory and
29 competitively neutral manner with respect to the payment of
30 permit fees, each municipality and charter county shall make
31 an election under either sub-subparagraph a. or
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1 sub-subparagraph b. and must inform the Department of Revenue
2 of the election by certified mail by October 1, 2001. Such
3 election take effect January 1, 2002.
4 a.(I) The municipality or charter county may require
5 and collect permit fees from any providers of communications
6 services that use or occupy municipal or county roads or
7 rights-of-way. All fees permitted under this sub-subparagraph
8 must be reasonable and commensurate with the direct and actual
9 cost of the regulatory activity, including issuing and
10 processing permits, plan reviews, physical inspection, and
11 direct administrative costs; must be demonstrable; and must be
12 equitable among users of the roads or rights-of-way. A fee
13 permitted under this sub-subparagraph may not: be offset
14 against the tax imposed under chapter 202; include the costs
15 of roads or rights-of-way acquisition or roads or
16 rights-of-way rental; include any general administrative,
17 management, or maintenance costs of the roads or
18 rights-of-way; or be based on a percentage of the value or
19 costs associated with the work to be performed on the roads or
20 rights-of-way. In an action to recover amounts due for a fee
21 not permitted under this sub-subparagraph, the prevailing
22 party may recover court costs and attorney's fees at trial and
23 on appeal. In addition to the limitations set forth in this
24 section, a fee levied by a municipality or charter county
25 under this sub-subparagraph may not exceed $100. However,
26 permit fees may not be imposed with respect to permits that
27 may be required for service drop lines not required to be
28 noticed under s. 556.108(5)(b) or for any activity that does
29 not require the physical disturbance of the roads or
30 rights-of-way or does not impair access to or full use of the
31 roads or rights-of-way.
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1 (II) To ensure competitive neutrality among providers
2 of communications services, for any municipality or charter
3 county that elects to exercise its authority to require and
4 collect permit fees under this sub-subparagraph, the rate of
5 the local communications services tax imposed by such
6 jurisdiction, as computed under s. 202.20(1)(a) and (2), shall
7 automatically be reduced by 0.12 percent.
8 b. Alternatively, the municipality or charter county
9 may elect not to require and collect permit fees from any
10 provider of communications services that uses or occupies
11 municipal or charter county roads or rights-of-way for the
12 provision of communications services; however, each
13 municipality or charter county that elects to operate under
14 this sub-subparagraph retains all authority to establish rules
15 and regulations for providers of communications services to
16 use or occupy roads or rights-of-way as provided in this
17 section. If a municipality or charter county elects to operate
18 under this sub-subparagraph, the total rate for the local
19 communications services tax as computed under s. 202.20 for
20 that municipality or charter county may be increased by
21 ordinance to an amount not to exceed 0.12 percent.
22 c. A municipality or charter county that does not make
23 an election as provided for in this subparagraph shall be
24 presumed to have elected to operate under the provisions of
25 sub-subparagraph b.
26 2. Each noncharter county shall make an election under
27 either sub-subparagraph a. or sub-subparagraph b. and shall
28 inform the Department of Revenue of the election by certified
29 mail by October 1, 2001. Such election shall take effect
30 January 1, 2002.
31
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1 a. The noncharter county may elect to require and
2 collect permit fees from any providers of communications
3 services that use or occupy noncharter county roads or
4 rights-of-way. All fees permitted under this sub-subparagraph
5 must be reasonable and commensurate with the direct and actual
6 cost of the regulatory activity, including issuing and
7 processing permits, plan reviews, physical inspection, and
8 direct administrative costs; must be demonstrable; and must be
9 equitable among users of the roads or rights-of-way. A fee
10 permitted under this sub-subparagraph may not: be offset
11 against the tax imposed under chapter 202; include the costs
12 of roads or rights-of-way acquisition or roads or
13 rights-of-way rental; include any general administrative,
14 management, or maintenance costs of the roads or
15 rights-of-way; or be based on a percentage of the value or
16 costs associated with the work to be performed on the roads or
17 rights-of-way. In an action to recover amounts due for a fee
18 not permitted under this sub-subparagraph, the prevailing
19 party may recover court costs and attorney's fees at trial and
20 on appeal. In addition to the limitations set forth in this
21 section, a fee levied by a noncharter county under this
22 sub-subparagraph may not exceed $100. However, permit fees may
23 not be imposed with respect to permits that may be required
24 for service drop lines not required to be noticed under s.
25 556.108(5)(b) or for any activity that does not require the
26 physical disturbance of the roads or rights-of-way or does not
27 impair access to or full use of the roads or rights-of-way.
28 b. Alternatively, the noncharter county may elect not
29 to require and collect permit fees from any provider of
30 communications services that uses or occupies noncharter
31 county roads or rights-of-way for the provision of
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1 communications services; however, each noncharter county that
2 elects to operate under this sub-subparagraph shall retain all
3 authority to establish rules and regulations for providers of
4 communications services to use or occupy roads or
5 rights-of-way as provided in this section. If a noncharter
6 county elects to operate under this sub-subparagraph, the
7 total rate for the local communications services tax as
8 computed under s. 202.20 for that noncharter county may be
9 increased by ordinance to an amount not to exceed 0.24
10 percent, to replace the revenue the noncharter county would
11 otherwise have received from permit fees for providers of
12 communications services.
13 c. A noncharter county that does not make an election
14 as provided for in this subparagraph shall be presumed to have
15 elected to operate under the provisions of sub-subparagraph b.
16 3. Except as provided in this paragraph,
17 municipalities and counties retain all existing authority to
18 require and collect permit fees from users or occupants of
19 municipal or county roads or rights-of-way and to set
20 appropriate permit fee amounts.
21 (d) After January 1, 2001, in addition to any other
22 notice requirements, a municipality must provide to the
23 Secretary of State, at least 10 days prior to consideration on
24 first reading, notice of a proposed ordinance governing a
25 telecommunications company placing or maintaining
26 telecommunications facilities in its roads or rights-of-way.
27 After January 1, 2001, in addition to any other notice
28 requirements, a county must provide to the Secretary of State,
29 at least 15 days prior to consideration at a public hearing,
30 notice of a proposed ordinance governing a telecommunications
31 company placing or maintaining telecommunications facilities
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1 in its roads or rights-of-way. The notice required by this
2 paragraph must be published by the Secretary of State on a
3 designated Internet website. The failure of a municipality or
4 county to provide such notice does not render the ordinance
5 invalid.
6 (e) If any municipality requires any
7 telecommunications company to pay a fee or other consideration
8 as a condition for granting permission to occupy municipal
9 streets and rights-of-way for poles, wires, and other
10 fixtures, such fee or consideration may not exceed 1 percent
11 of the gross receipts on recurring local service revenues for
12 services provided within the corporate limits of the
13 municipality by such telecommunications company. Included
14 within such 1-percent maximum fee or consideration are all
15 taxes, licenses, fees, in-kind contributions accepted pursuant
16 to paragraph (g) subsection (5), and other impositions except
17 ad valorem taxes and amounts for assessments for special
18 benefits, such as sidewalks, street pavings, and similar
19 improvements, and occupational license taxes levied or imposed
20 by a municipality upon the telecommunications company. This
21 paragraph subsection shall not impair any franchise in
22 existence on July 1, 1985.
23 (f)(4) A municipality may require by ordinance enter
24 into an agreement with any person providing telecommunication
25 services defined in s. 203.012(7) as a condition for granting
26 permission to occupy or use any city street, alley, viaduct,
27 elevated roadway, bridge, or other public way to pay. The
28 agreement shall permit the telecommunication service provider
29 to construct, operate, maintain, repair, rebuild, or replace a
30 telecommunications route within a municipal right-of-way. The
31 agreement shall provide for a fee or other consideration
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1 payable annually based on actual linear feet of any cable,
2 fiber optic, or other pathway that makes physical use of the
3 municipal right-of-way. In no event shall the fee or other
4 consideration imposed pursuant to this paragraph subsection be
5 less than $500 per linear mile of any cable, fiber optic, or
6 other pathway that makes physical use of the municipal
7 right-of-way. Any fee or other consideration imposed by this
8 paragraph subsection in excess of $500 shall be applied in a
9 nondiscriminatory manner and shall not exceed the sum of:
10 1.(a) Costs directly related to the inconvenience or
11 impairment solely caused by the disturbance of the municipal
12 right-of-way; and
13 2.(b) The reasonable cost of the regulatory activity
14 of the municipality; and.
15 3.(c) The proportionate share of cost of land for such
16 street, alley, or other public way attributable to utilization
17 of the right-of-way by a telecommunication service provider.
18
19 Furthermore, no telecommunication service provider shall be
20 required to pay more than one such fee or other consideration
21 annually for the construction, maintenance, operation, repair,
22 rebuilding, or replacement of a parallel telecommunications
23 route owned by it, or by a subsidiary under its direct
24 control, which makes use of the right-of-way of any
25 municipality enacting an ordinance pursuant to this paragraph
26 subsection. The fee or other consideration imposed pursuant
27 to this paragraph subsection shall not apply in any manner to
28 any telecommunication service provider who provides
29 telecommunication services as defined in s. 203.012(3) for any
30 services provided by such service provider. Any agreement
31 entered into pursuant to the authority of this paragraph
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1 subsection prior to June 3, 1988, and the fees or fee schedule
2 in effect on that date shall remain in full force and effect
3 until such agreement expires. Any ordinance enacted pursuant
4 to this paragraph subsection prior to June 3, 1988, and the
5 fees or fee schedule in effect on that date shall remain in
6 full force and effect unless the ordinance is repealed by the
7 municipality. Notwithstanding the language contained herein a
8 municipality may reenact any ordinance which has an automatic
9 expiration date provided the ordinance does not increase the
10 fees in effect in said ordinance in violation of this section.
11 (g)(5) Except as expressly allowed or authorized by
12 general law and except for the rights-of-way permit fees
13 subject to paragraph (e) subsection (3), a municipality may
14 not levy on a telecommunications company a tax, fee, or other
15 charge for operating as a telecommunications company within
16 the jurisdiction of the municipality or which is in any way
17 related to using its roads or rights-of-way. A municipality
18 may not allow a telecommunications company to pay a fee or
19 provide compensation in excess of the limits prescribed in
20 this section. A municipality may not require or solicit
21 in-kind compensation in lieu of any fees imposed pursuant to
22 this section. Nothing in this paragraph subsection shall
23 impair any ordinance or agreement in effect on May 22, 1998,
24 the effective date of this act which provides for or allows
25 in-kind compensation by a telecommunications company.
26 (h)(6) A local governmental entity may not use its
27 authority over the placement of facilities in its roads and
28 rights-of-way as a basis for asserting or exercising
29 regulatory control over a telecommunications company regarding
30 matters within the exclusive jurisdiction of the Florida
31 Public Service Commission or the Federal Communications
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1 Commission, including, but not limited to, the operations,
2 systems, qualifications, services, service quality, service
3 territory, and prices of a telecommunications company.
4 (i)(7) A telecommunications company that has obtained
5 permission to occupy the roads and rights-of-way of an
6 incorporated municipality pursuant to s. 362.01 city or town
7 or that is otherwise lawfully occupying the roads or
8 rights-of-way of a municipality on the effective date of this
9 act shall not be required to obtain additional consent to
10 continue such lawful occupation of those roads or
11 rights-of-way; however, nothing in this paragraph subsection
12 shall be interpreted to limit the power of a municipality to
13 impose a fee or adopt or enforce reasonable rules or
14 regulations as provided in this section.
15 (j)(8) Except as expressly provided in this section,
16 this section does not modify the authority of local
17 governmental entities to levy the tax authorized in s. 166.231
18 or the duties of telecommunications companies under ss.
19 337.402-337.404. This section does not apply to building
20 permits, pole attachments, or private roads, private
21 easements, and private rights-of-way. Except as expressly
22 provided in this section, this section does not limit or
23 expand whatever powers counties may have relating to roads and
24 rights-of-way. Nothing in this section shall limit or expand
25 whatever authority a local government may have to impose any
26 fee pursuant to 47 U.S.C. ss. 542 and 573.
27 (k)(9) As used in this section, "telecommunications
28 company" has the same meaning as defined in s. 364.02.
29 (4)(10) This section, except subsections (1) and, (2),
30 and paragraph (3)(h) (6), does not apply to the provision of
31
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1 pay telephone service on public or municipal roads or
2 rights-of-way.
3 Section 50. Effective January 1, 2002, section
4 337.401, Florida Statutes, as amended by this act, is amended
5 to read:
6 337.401 Use of right-of-way for utilities subject to
7 regulation; permit; fees.--
8 (1) The department and local governmental entities,
9 referred to in ss. 337.401-337.404 as the "authority," that
10 have jurisdiction and control of public roads or publicly
11 owned rail corridors are authorized to prescribe and enforce
12 reasonable rules or regulations with reference to the placing
13 and maintaining along, across, or on any road or publicly
14 owned rail corridors under their respective jurisdictions any
15 electric transmission, telephone, or telegraph, or other
16 communications services lines; pole lines; poles; railways;
17 ditches; sewers; water, heat, or gas mains; pipelines; fences;
18 gasoline tanks and pumps; or other structures hereinafter
19 referred to as the "utility."
20 (2) The authority may grant to any person who is a
21 resident of this state, or to any corporation which is
22 organized under the laws of this state or licensed to do
23 business within this state, the use of a right-of-way for the
24 utility in accordance with such rules or regulations as the
25 authority may adopt. No utility shall be installed, located,
26 or relocated unless authorized by a written permit issued by
27 the authority. The permit shall require the permitholder to
28 be responsible for any damage resulting from the issuance of
29 such permit. The authority may initiate injunctive
30 proceedings as provided in s. 120.69 to enforce provisions of
31
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1 this subsection or any rule or order issued or entered into
2 pursuant thereto.
3 (3)(a) Because of the unique circumstances applicable
4 to providers of communications services, including, but not
5 limited to, the circumstances described in paragraph (e) and
6 the fact that federal and state law require the
7 nondiscriminatory treatment of providers of telecommunications
8 services, and because of the desire to promote competition
9 among providers of communications telecommunications services,
10 it is the intent of the Legislature that municipalities and
11 counties treat providers of communications services
12 telecommunications companies in a nondiscriminatory and
13 competitively neutral manner when imposing rules or
14 regulations governing the placement or maintenance of
15 communications telecommunications facilities in the public
16 roads or rights-of-way. Rules or regulations imposed by a
17 municipality or county relating to providers of communications
18 services telecommunications companies placing or maintaining
19 communications telecommunications facilities in its roads or
20 rights-of-way must be generally applicable to all providers of
21 communications services telecommunications companies and,
22 notwithstanding any other law, may not require a provider of
23 communications services, except as otherwise provided in
24 paragraph (f), telecommunications company to apply for or
25 enter into an individual license, franchise, or other
26 agreement with the municipality or county as a condition of
27 placing or maintaining communications telecommunications
28 facilities in its roads or rights-of-way. In addition to other
29 reasonable rules that a municipality or county may adopt
30 relating to the placement or maintenance of communications
31 telecommunications facilities in its roads or rights-of-way
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1 under this subsection, a municipality or county may require a
2 provider of communications services telecommunications company
3 that places or seeks to place facilities in its roads or
4 rights-of-way to register with the municipality or county and
5 to provide the name of the registrant; the name, address, and
6 telephone number of a contact person for the registrant; the
7 number of the registrant's current certificate of
8 authorization issued by the Florida Public Service Commission
9 or the Federal Communications Commission; and proof of
10 insurance or self-insuring status adequate to defend and cover
11 claims.
12 (b) Each municipality and county retains the authority
13 to regulate and manage municipal and county roads or
14 rights-of-way in exercising its police power. Any rules or
15 regulations adopted by a municipality or county which govern
16 the occupation of its roads or rights-of-way by providers of
17 communications services telecommunications companies must be
18 related to the placement or maintenance of facilities in such
19 roads or rights-of-way, must be reasonable and
20 nondiscriminatory, and may include only those matters
21 necessary to manage the roads or rights-of-way of the
22 municipality or county.
23 (c)1. It is the intention of the state to treat all
24 providers of communications services that use or occupy
25 municipal or charter county roads or rights-of-way for the
26 provision of communications services in a nondiscriminatory
27 and competitively neutral manner with respect to the payment
28 of permit fees. Certain providers of communications services
29 have been granted by general law the authority to offset
30 permit fees against franchise or other fees while other
31 providers of communications services have not been granted
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1 this authority. In order to treat all providers of
2 communications services in a nondiscriminatory and
3 competitively neutral manner with respect to the payment of
4 permit fees, each municipality and charter county shall make
5 an election under either sub-subparagraph a. or
6 sub-subparagraph b. and must inform the Department of Revenue
7 of the election by certified mail by October 1, 2001. Such
8 election shall take effect January 1, 2002.
9 a.(I) The municipality or charter county may require
10 and collect permit fees from any providers of communications
11 services that use or occupy municipal or county roads or
12 rights-of-way. All fees permitted under this sub-subparagraph
13 must be reasonable and commensurate with the direct and actual
14 cost of the regulatory activity, including issuing and
15 processing permits, plan reviews, physical inspection, and
16 direct administrative costs; must be demonstrable; and must be
17 equitable among users of the roads or rights-of-way. A fee
18 permitted under this sub-subparagraph may not: be offset
19 against the tax imposed under chapter 202; include the costs
20 of roads or rights-of-way acquisition or roads or
21 rights-of-way rental; include any general administrative,
22 management, or maintenance costs of the roads or
23 rights-of-way; or be based on a percentage of the value or
24 costs associated with the work to be performed on the roads or
25 rights-of-way. In an action to recover amounts due for a fee
26 not permitted under this sub-subparagraph, the prevailing
27 party may recover court costs and attorney's fees at trial and
28 on appeal. In addition to the limitations set forth in this
29 section, a fee levied by a municipality or charter county
30 under this sub-subparagraph may not exceed $100. However,
31 permit fees may not be imposed with respect to permits that
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1 may be required for service drop lines not required to be
2 noticed under s. 556.108(5)(b) or for any activity that does
3 not require the physical disturbance of the roads or
4 rights-of-way or does not impair access to or full use of the
5 roads or rights-of-way.
6 (II) To ensure competitive neutrality among providers
7 of communications services, for any municipality or charter
8 county that elects to exercise its authority to require and
9 collect permit fees under this sub-subparagraph, the rate of
10 the local communications services tax imposed by such
11 jurisdiction, as computed under s. 202.20(1)(a) and (2), shall
12 automatically be reduced by 0.12 percent.
13 b. Alternatively, the municipality or charter county
14 may elect not to require and collect permit fees from any
15 provider of communications services that uses or occupies
16 municipal or charter county roads or rights-of-way for the
17 provision of communications services; however, each
18 municipality or charter county that elects to operate under
19 this sub-subparagraph retains all authority to establish rules
20 and regulations for providers of communications services to
21 use or occupy roads or rights-of-way as provided in this
22 section. If a municipality or charter county elects to operate
23 under this sub-subparagraph, the total rate for the local
24 communications services tax as computed under s. 202.20 for
25 that municipality or charter county may be increased by
26 ordinance to an amount not to exceed 0.12 percent.
27 c. A municipality or charter county that does not make
28 an election as provided for in this subparagraph shall be
29 presumed to have elected to operate under the provisions of
30 sub-subparagraph b.
31
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1 2. Each noncharter county shall make an election under
2 either sub-subparagraph a. or sub-subparagraph b. and shall
3 inform the Department of Revenue of the election by certified
4 mail by October 1, 2001. Such election shall take effect
5 January 1, 2002.
6 a. The noncharter county may elect to require and
7 collect permit fees from any providers of communications
8 services that use or occupy noncharter county roads or
9 rights-of-way. All fees permitted under this sub-subparagraph
10 must be reasonable and commensurate with the direct and actual
11 cost of the regulatory activity, including issuing and
12 processing permits, plan reviews, physical inspection, and
13 direct administrative costs; must be demonstrable; and must be
14 equitable among users of the roads or rights-of-way. A fee
15 permitted under this sub-subparagraph may not: be offset
16 against the tax imposed under chapter 202; include the costs
17 of roads or rights-of-way acquisition or roads or
18 rights-of-way rental; include any general administrative,
19 management, or maintenance costs of the roads or
20 rights-of-way; or be based on a percentage of the value or
21 costs associated with the work to be performed on the roads or
22 rights-of-way. In an action to recover amounts due for a fee
23 not permitted under this sub-subparagraph, the prevailing
24 party may recover court costs and attorney's fees at trial and
25 on appeal. In addition to the limitations set forth in this
26 section, a fee levied by a noncharter county under this
27 sub-subparagraph may not exceed $100. However, permit fees may
28 not be imposed with respect to permits that may be required
29 for service drop lines not required to be noticed under s.
30 556.108(5)(b) or for any activity that does not require the
31
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1 physical disturbance of the roads or rights-of-way or does not
2 impair access to or full use of the roads or rights-of-way.
3 b. Alternatively, the noncharter county may elect not
4 to require and collect permit fees from any provider of
5 communications services that uses or occupies noncharter
6 county roads or rights-of-way for the provision of
7 communications services; however, each noncharter county that
8 elects to operate under this sub-subparagraph shall retain all
9 authority to establish rules and regulations for providers of
10 communications services to use or occupy roads or
11 rights-of-way as provided in this section. If a noncharter
12 county elects to operate under this sub-subparagraph, the
13 total rate for the local communications services tax as
14 computed under s. 202.20 for that noncharter county may be
15 increased by ordinance to an amount not to exceed 0.24
16 percent, to replace the revenue the noncharter county would
17 otherwise have received from permit fees for providers of
18 communications services.
19 c. A noncharter county that does not make an election
20 as provided for in this subparagraph shall be presumed to have
21 elected to operate under the provisions of sub-subparagraph b.
22 3. Except as provided in this paragraph,
23 municipalities and counties retain all existing authority to
24 require and collect permit fees from users or occupants of
25 municipal or county roads or rights-of-way and to set
26 appropriate permit fee amounts.
27 (d) After January 1, 2001, in addition to any other
28 notice requirements, a municipality must provide to the
29 Secretary of State, at least 10 days prior to consideration on
30 first reading, notice of a proposed ordinance governing a
31 provider of communications services telecommunications company
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1 placing or maintaining communications telecommunications
2 facilities in its roads or rights-of-way. After January 1,
3 2001, in addition to any other notice requirements, a county
4 must provide to the Secretary of State, at least 15 days prior
5 to consideration at a public hearing, notice of a proposed
6 ordinance governing a provider of communications services
7 telecommunications company placing or maintaining
8 communications telecommunications facilities in its roads or
9 rights-of-way. The notice required by this paragraph must be
10 published by the Secretary of State on a designated Internet
11 website. The failure of a municipality or county to provide
12 such notice does not render the ordinance invalid.
13 (e) The authority of municipalities and counties to
14 require franchise fees from providers of communications
15 services, with respect to the provision of communications
16 services, is specifically preempted by the state, except as
17 otherwise provided in paragraph (f), because of unique
18 circumstances applicable to providers of communications
19 services when compared to other utilities occupying municipal
20 or county roads or rights-of-way. Providers of communications
21 services may provide similar services in a manner that
22 requires the placement of facilities in municipal or county
23 roads or rights-of-way or in a manner that does not require
24 the placement of facilities in such roads or rights-of-way.
25 Although similar communications services may be provided by
26 different means, the state desires to treat providers of
27 communications services in a nondiscriminatory manner and to
28 have the taxes, franchise fees, and other fees paid by
29 providers of communications services be competitively neutral.
30 Municipalities and counties retain all existing authority, if
31 any, to collect franchise fees from users or occupants of
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1 municipal or county roads or rights-of-way other than
2 providers of communications services, and the provisions of
3 this subsection shall have no effect upon this authority. The
4 provisions of this subsection do not restrict the authority,
5 if any, of municipalities or counties or other governmental
6 entities to receive reasonable rental fees based on fair
7 market value for the use of public lands and buildings on
8 property outside the public roads or rights-of-way for the
9 placement of communications antennas and towers.
10 (f) A municipality or county may request and negotiate
11 for in-kind requirements and contributions for, or in support
12 of, the use or construction of public, educational, or
13 governmental access facilities authorized under federal law
14 from providers of cable service, and nothing in this section
15 shall impair any ordinance or agreement in effect on July 1,
16 2000, which provides for or allows for such requirements or
17 contributions, including the ability of providers of cable
18 service to recover any such expenses pursuant to federal law.
19 This subsection shall be reviewed by the Legislature during
20 the 2001 legislative session in conjunction with the study
21 required by this act.
22 (g) Each municipality and county retains authority to
23 negotiate all terms and conditions of a cable service
24 franchise allowed by federal and state law except those terms
25 and conditions related to franchise fees and the definition of
26 gross revenues or other definitions or methodologies related
27 to the payment or assessment of franchise fees on providers of
28 cable services.
29 (e) If any municipality requires any
30 telecommunications company to pay a fee or other consideration
31 as a condition for granting permission to occupy municipal
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1 streets and rights-of-way for poles, wires, and other
2 fixtures, such fee or consideration may not exceed 1 percent
3 of the gross receipts on recurring local service revenues for
4 services provided within the corporate limits of the
5 municipality by such telecommunications company. Included
6 within such 1-percent maximum fee or consideration are all
7 taxes, licenses, fees, in-kind contributions accepted pursuant
8 to paragraph (g), and other impositions except ad valorem
9 taxes and amounts for assessments for special benefits, such
10 as sidewalks, street pavings, and similar improvements, and
11 occupational license taxes levied or imposed by a municipality
12 upon the telecommunications company. This paragraph shall not
13 impair any franchise in existence on July 1, 1985.
14 (f) A municipality may require any person providing
15 telecommunication services defined in s. 203.012(7) as a
16 condition for granting permission to occupy or use any city
17 street, alley, viaduct, elevated roadway, bridge, or other
18 public way to pay a fee or other consideration payable
19 annually based on actual linear feet of any cable, fiber
20 optic, or other pathway that makes physical use of the
21 municipal right-of-way. In no event shall the fee or other
22 consideration imposed pursuant to this paragraph be less than
23 $500 per linear mile of any cable, fiber optic, or other
24 pathway that makes physical use of the municipal right-of-way.
25 Any fee or other consideration imposed by this paragraph in
26 excess of $500 shall be applied in a nondiscriminatory manner
27 and shall not exceed the sum of:
28 1. Costs directly related to the inconvenience or
29 impairment solely caused by the disturbance of the municipal
30 right-of-way;
31
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1 2. The reasonable cost of the regulatory activity of
2 the municipality; and
3 3. The proportionate share of cost of land for such
4 street, alley, or other public way attributable to utilization
5 of the right-of-way by a telecommunication service provider.
6
7 Furthermore, no telecommunication service provider shall be
8 required to pay more than one such fee or other consideration
9 annually for the construction, maintenance, operation, repair,
10 rebuilding, or replacement of a parallel telecommunications
11 route owned by it, or by a subsidiary under its direct
12 control, which makes use of the right-of-way of any
13 municipality enacting an ordinance pursuant to this paragraph.
14 The fee or other consideration imposed pursuant to this
15 paragraph shall not apply in any manner to any
16 telecommunication service provider who provides
17 telecommunication services as defined in s. 203.012(3) for any
18 services provided by such service provider. Any agreement
19 entered into pursuant to the authority of this paragraph prior
20 to June 3, 1988, and the fees or fee schedule in effect on
21 that date shall remain in full force and effect until such
22 agreement expires. Any ordinance enacted pursuant to this
23 paragraph prior to June 3, 1988, and the fees or fee schedule
24 in effect on that date shall remain in full force and effect
25 unless the ordinance is repealed by the municipality.
26 Notwithstanding the language contained herein a municipality
27 may reenact any ordinance which has an automatic expiration
28 date provided the ordinance does not increase the fees in
29 effect in said ordinance in violation of this section.
30 (h)(g) Except as expressly allowed or authorized by
31 general law and except for the rights-of-way permit fees
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1 subject to paragraph (c) (e), a municipality or county may not
2 levy on a provider of communications services
3 telecommunications company a tax, fee, or other charge or
4 imposition for operating as a provider of communications
5 services telecommunications company within the jurisdiction of
6 the municipality or county which is in any way related to
7 using its roads or rights-of-way. A municipality may not allow
8 a telecommunications company to pay a fee or provide
9 compensation in excess of the limits prescribed in this
10 section. A municipality or county may not require or solicit
11 in-kind compensation except as otherwise provided in paragraph
12 (f) in lieu of any fees imposed pursuant to this section.
13 Nothing in this paragraph shall impair any ordinance or
14 agreement in effect on May 22, 1998, or any voluntary
15 agreement entered into subsequent to that date, which provides
16 for or allows in-kind compensation by a telecommunications
17 company.
18 (i)(h) A municipality or county local governmental
19 entity may not use its authority over the placement of
20 facilities in its roads and rights-of-way as a basis for
21 asserting or exercising regulatory control over a provider of
22 communications services telecommunications company regarding
23 matters within the exclusive jurisdiction of the Florida
24 Public Service Commission or the Federal Communications
25 Commission, including, but not limited to, the operations,
26 systems, qualifications, services, service quality, service
27 territory, and prices of a provider of communications services
28 telecommunications company.
29 (j)(i) A provider of communications services
30 telecommunications company that has obtained permission to
31 occupy the roads or and rights-of-way of an incorporated
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1 municipality pursuant to s. 362.01 or that is otherwise
2 lawfully occupying the roads or rights-of-way of a
3 municipality on the effective date of this act shall not be
4 required to obtain consent to continue such lawful occupation
5 of those roads or rights-of-way; however, nothing in this
6 paragraph shall be interpreted to limit the power of a
7 municipality to impose a fee or adopt or enforce reasonable
8 rules or regulations as provided in this section.
9 (k)(j) Except as expressly provided in this section,
10 this section does not modify the authority of municipalities
11 and counties local governmental entities to levy the tax
12 authorized in chapter 202 s. 166.231 or the duties of
13 providers of communications services telecommunications
14 companies under ss. 337.402-337.404. This section does not
15 apply to building permits, pole attachments, or private roads,
16 private easements, and private rights-of-way. Except as
17 expressly provided in this section, this section does not
18 limit or expand whatever powers counties may have relating to
19 roads and rights-of-way. Nothing in this section shall limit
20 or expand whatever authority a local government may have to
21 impose any fee pursuant to 47 U.S.C. ss. 542 and 573.
22 (4)(k) As used in this section, "communications
23 services" and "cable services" have "telecommunications
24 company" has the same meanings ascribed in chapter 202 meaning
25 as defined in s. 364.02.
26 (5)(4) This section, except subsections (1) and (2)
27 and paragraph (3)(i)(h), does not apply to the provision of
28 pay telephone service on public, or municipal, or county roads
29 or rights-of-way.
30 Section 51. The Legislature finds that it may be
31 necessary to adopt a state policy regarding in-kind
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1 requirements and contributions for, or in support of, the use
2 or construction of public, educational, or governmental access
3 facilities authorized under federal law currently imposed only
4 on providers of cable service, especially in light of the
5 in-kind requirements for providers of telecommunications
6 services under section 337.401(5), Florida Statutes, 1999.
7 Given the development of alternative choices in the delivery
8 of multichannel video programming, including programming by
9 providers of wireless, satellite, Internet, and other video
10 delivery systems, and the potential competitive inequities
11 which may be associated with such requirements and
12 contributions, the appropriate committees of the Legislature
13 shall study and evaluate, during the 2001 legislative session,
14 an appropriate state policy regarding these issues, including
15 the option of calculating the present and future value of such
16 requirements and contributions available to local governments
17 in excess of the limitations imposed on franchise fees under
18 47 U.S.C. s. 542(b) as a part of the computation of
19 replacement revenues under section 202.20, Florida Statutes,
20 in setting the local communications services tax rate.
21 Section 52. Subsection (1) of section 212.031, Florida
22 Statutes, is amended to read:
23 212.031 Lease or rental of or license in real
24 property.--
25 (1)(a) It is declared to be the legislative intent
26 that every person is exercising a taxable privilege who
27 engages in the business of renting, leasing, letting, or
28 granting a license for the use of any real property unless
29 such property is:
30 1. Assessed as agricultural property under s. 193.461.
31 2. Used exclusively as dwelling units.
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1 3. Property subject to tax on parking, docking, or
2 storage spaces under s. 212.03(6).
3 4. Recreational property or the common elements of a
4 condominium when subject to a lease between the developer or
5 owner thereof and the condominium association in its own right
6 or as agent for the owners of individual condominium units or
7 the owners of individual condominium units. However, only the
8 lease payments on such property shall be exempt from the tax
9 imposed by this chapter, and any other use made by the owner
10 or the condominium association shall be fully taxable under
11 this chapter.
12 5. A public or private street or right-of-way and
13 poles, conduits, fixtures, and similar improvements located on
14 such streets or rights-of-way, occupied or used by a utility
15 or franchised cable television company for utility or
16 communications or television purposes. For purposes of this
17 subparagraph, the term "utility" means any person providing
18 utility services as defined in s. 203.012. This exception also
19 applies to property, excluding buildings, wherever located, on
20 which the following are placed: towers, antennas, cables,
21 adjacent accessory structures, or adjacent accessory
22 equipment, not including switching equipment, used in the
23 provision of cellular, enhanced specialized mobile radio, or
24 personal communications services as defined in s. 202.11 are
25 placed. For purposes of this chapter, towers used in the
26 provision of mobile communications services, as defined in s.
27 202.11, are considered to be fixtures.
28 6. A public street or road which is used for
29 transportation purposes.
30 7. Property used at an airport exclusively for the
31 purpose of aircraft landing or aircraft taxiing or property
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1 used by an airline for the purpose of loading or unloading
2 passengers or property onto or from aircraft or for fueling
3 aircraft.
4 8.a. Property used at a port authority, as defined in
5 s. 315.02(2), exclusively for the purpose of oceangoing
6 vessels or tugs docking, or such vessels mooring on property
7 used by a port authority for the purpose of loading or
8 unloading passengers or cargo onto or from such a vessel, or
9 property used at a port authority for fueling such vessels, or
10 to the extent that the amount paid for the use of any property
11 at the port is based on the charge for the amount of tonnage
12 actually imported or exported through the port by a tenant.
13 b. The amount charged for the use of any property at
14 the port in excess of the amount charged for tonnage actually
15 imported or exported shall remain subject to tax except as
16 provided in sub-subparagraph a.
17 9. Property used as an integral part of the
18 performance of qualified production services. As used in this
19 subparagraph, the term "qualified production services" means
20 any activity or service performed directly in connection with
21 the production of a qualified motion picture, as defined in s.
22 212.06(1)(b), and includes:
23 a. Photography, sound and recording, casting, location
24 managing and scouting, shooting, creation of special and
25 optical effects, animation, adaptation (language, media,
26 electronic, or otherwise), technological modifications,
27 computer graphics, set and stage support (such as
28 electricians, lighting designers and operators, greensmen,
29 prop managers and assistants, and grips), wardrobe (design,
30 preparation, and management), hair and makeup (design,
31 production, and application), performing (such as acting,
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1 dancing, and playing), designing and executing stunts,
2 coaching, consulting, writing, scoring, composing,
3 choreographing, script supervising, directing, producing,
4 transmitting dailies, dubbing, mixing, editing, cutting,
5 looping, printing, processing, duplicating, storing, and
6 distributing;
7 b. The design, planning, engineering, construction,
8 alteration, repair, and maintenance of real or personal
9 property including stages, sets, props, models, paintings, and
10 facilities principally required for the performance of those
11 services listed in sub-subparagraph a.; and
12 c. Property management services directly related to
13 property used in connection with the services described in
14 sub-subparagraphs a. and b.
15 10. Leased, subleased, licensed, or rented to a person
16 providing food and drink concessionaire services within the
17 premises of a convention hall, exhibition hall, auditorium,
18 stadium, theater, arena, civic center, performing arts center,
19 recreational facility, or any business operated under a permit
20 issued pursuant to chapter 550. A person providing retail
21 concessionaire services involving the sale of food and drink
22 or other tangible personal property within the premises of an
23 airport shall be subject to tax on the rental of real property
24 used for that purpose, but shall not be subject to the tax on
25 any license to use the property. For purposes of this
26 subparagraph, the term "sale" shall not include the leasing of
27 tangible personal property.
28 11. Property occupied pursuant to an instrument
29 calling for payments which the department has declared, in a
30 Technical Assistance Advisement issued on or before March 15,
31 1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),
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1 Florida Administrative Code; provided that this subparagraph
2 shall only apply to property occupied by the same person
3 before and after the execution of the subject instrument and
4 only to those payments made pursuant to such instrument,
5 exclusive of renewals and extensions thereof occurring after
6 March 15, 1993.
7 (b) When a lease involves multiple use of real
8 property wherein a part of the real property is subject to the
9 tax herein, and a part of the property would be excluded from
10 the tax under subparagraph (a)1., subparagraph (a)2., or
11 subparagraph (a)3., or subparagraph (a)5., the department
12 shall determine, from the lease or license and such other
13 information as may be available, that portion of the total
14 rental charge which is exempt from the tax imposed by this
15 section. The portion of the premises leased or rented by a
16 for-profit entity providing a residential facility for the
17 aged will be exempt on the basis of a pro rata portion
18 calculated by combining the square footage of the areas used
19 for residential units by the aged and for the care of such
20 residents and dividing the resultant sum by the total square
21 footage of the rented premises. For purposes of this section,
22 the term "residential facility for the aged" means a facility
23 that is licensed or certified in whole or in part under
24 chapter 400 or chapter 651; or that provides residences to the
25 elderly and is financed by a mortgage or loan made or insured
26 by the United States Department of Housing and Urban
27 Development under s. 202, s. 202 with a s. 8 subsidy, s.
28 221(d)(3) or (4), s. 232, or s. 236 of the National Housing
29 Act; or other such similar facility that provides residences
30 primarily for the elderly.
31
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1 (c) For the exercise of such privilege, a as tax is
2 levied in an amount equal to 6 percent of and on the total
3 rent or license fee charged for such real property by the
4 person charging or collecting the rental or license fee. The
5 total rent or license fee charged for such real property shall
6 include payments for the granting of a privilege to use or
7 occupy real property for any purpose and shall include base
8 rent, percentage rents, or similar charges. Such charges shall
9 be included in the total rent or license fee subject to tax
10 under this section whether or not they can be attributed to
11 the ability of the lessor's or licensor's property as used or
12 operated to attract customers. Payments for intrinsically
13 valuable personal property such as franchises, trademarks,
14 service marks, logos, or patents are not subject to tax under
15 this section. In the case of a contractual arrangement that
16 provides for both payments taxable as total rent or license
17 fee and payments not subject to tax, the tax shall be based on
18 a reasonable allocation of such payments and shall not apply
19 to that portion which is for the nontaxable payments.
20 (d) When the rental or license fee of any such real
21 property is paid by way of property, goods, wares,
22 merchandise, services, or other thing of value, the tax shall
23 be at the rate of 6 percent of the value of the property,
24 goods, wares, merchandise, services, or other thing of value.
25 Section 53. The taxes imposed by sections 203.01,
26 202.12, and 202.19, Florida Statutes, on communications
27 services shall be applied in accordance with chapter 202,
28 Florida Statutes, as created by this act, to communications
29 services reflected on bills dated on or after January 1, 2002.
30 Section 54. Effective upon this act becoming a law,
31 the sum of $189,000 is appropriated from the General Revenue
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1 Fund to the Department of Revenue in fiscal year 2000-2001 to
2 implement the provisions of this act.
3 Section 55. The sum of $1,327,195 is appropriated from
4 the General Revenue Fund to the Department of Revenue and 22
5 full-time equivalent positions are authorized to implement the
6 provisions of this act.
7 Section 56. Except as otherwise provided in this act,
8 this act shall take effect July 1, 2000.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS for SB 1338
3
4 The Committee Substitute for CS/SB 1338:
5 - Clarifies various definitions;
6 - Provides for the calculation of the rate for direct
broadcast satellite;
7
- Clarifies billing, collection, and remittance provisions
8 and describes reporting requirements to the Department
of Revenue;
9
- Provides that a local government that does not receive
10 the expected amount of revenue in the first year of the
tax can enact an emergency ordinance to hold itself
11 harmless against the shortfall;
12 - Clarifies the definition of "replaced revenue sources";
13 - Provides for a conversion rate procedure;
14 - Provides administrative procedures for certification of
databases;
15
- Clarifies the Department of Revenue's rule-making
16 authority with respect to the communications services
tax;
17
- Clarifies that the Department of Revenue can audit
18 either a dealer or a purchaser;
19 - Explains the state's intent to treat all providers the
same regarding the payment of permit fees;
20
- Clarifies that $100 is a cap and that permit fees must
21 relate to actual costs;
22 - Provides that Internet access, electronic mail, and
online services are not taxed;
23
- Clarifies that both state-level taxes are to be applied
24 toward the $100,000 threshold for the large user
exemption;
25
- Reduces the allowable deduction for Department of
26 Revenue costs to administer the local taxes from 2
percent to 1 percent;
27
- Adds provisions directing a study of in-kind
28 contributions by cable operators and their valuation in
calculating replacement revenues for the local taxes;
29
- Provides that municipalities and counties retain the
30 authority to negotiate terms and conditions of cable
franchise agreements except regarding franchise fees,
31 which are replaced with the new local taxes;
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1 - Prescribes the treatment of telephone franchise fees
under older franchises in calculating local tax rates;
2
- Specifies the rate adjustments that result from a local
3 government's decision whether to charge permit fees;
4 - Clarifies that the replaced revenues used in calculating
local rates do not include permit fees for cities that
5 elect to charge permit fees separately; and
6 - Clarifies effective dates as they relate to local
jurisdictions electing whether to continue collecting
7 permit fees.
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