Senate Bill 2256

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    Florida Senate - 2000                                  SB 2256

    By Senator Horne





    6-1314A-00

  1                      A bill to be entitled

  2         An act relating to the taxation of prepaid

  3         telephone calling cards; amending s. 166.231,

  4         F.S.; excluding from the public service tax

  5         charges for telecommunications services which

  6         are paid for through a prepaid calling card;

  7         amending ss. 203.01, 203.012, F.S.; revising

  8         the definition of the term "gross receipts";

  9         amending s. 212.05, F.S.; reducing the amount

10         of the sales tax which is imposed on prepaid

11         calling cards; amending s. 212.054, F.S.;

12         providing that the local option sales tax

13         applies to prepaid calling cards; providing an

14         effective date.

15

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

17

18         Section 1.  Paragraphs (a) and (e) of subsection (9) of

19  section 166.231, Florida Statutes, are amended to read:

20         166.231  Municipalities; public service tax.--

21         (9)  A municipality may levy a tax on the purchase of

22  telecommunication services as defined in s. 203.012 as

23  follows:

24         (a)1.  Only upon purchases within the municipality of

25  local telephone service as defined in s. 203.012(3) at a rate

26  not to exceed 10 percent of the monthly recurring customer

27  service charges, excluding public telephone charges collected

28  on site, access charges, and any customer access line charges

29  paid to a local telephone company; or

30         2.  Only upon purchases within the municipality of

31  telecommunications service that originates and terminates in

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  1  this state at a rate not to exceed 7 percent of the total

  2  amount charged for any telecommunications service provided

  3  within the municipality or, if the location of the

  4  telecommunications service provided cannot be determined as

  5  part of the billing process, the total amount billed for such

  6  telecommunications service to a telephone or telephone number,

  7  a telecommunications number or device, a service address, or a

  8  customers' billing address located within the municipality,

  9  excluding charges for telecommunication services which are

10  paid by using a prepaid telephone calling card as defined in

11  s. 212.05(1)(e)1.b., public telephone charges collected on

12  site, charges for any foreign exchange service or any private

13  line service except when such services are used or sold as a

14  substitute for any telephone company switched service or

15  dedicated facility by which a telephone company provides a

16  communication path, access charges, and any customer access

17  line charges paid to a local telephone company. However,

18  telecommunications service as defined in s. 203.012(5)(b)

19  shall be taxed only on the monthly recurring customer service

20  charges excluding variable usage charges.

21         (e)  Purchases of local telephone service or other

22  telecommunications service for use in the conduct of a

23  telecommunications service for hire or otherwise for resale,

24  including resale of telecommunication services paid by using a

25  prepaid telephone calling card as defined in s.

26  212.05(1)(e)1.b., are exempt from the tax imposed by this

27  subsection.

28         Section 2.  Subsections (3) and (4) of section 203.01,

29  Florida Statutes, are amended to read:

30         203.01  Tax on gross receipts for utility services.--

31

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  1         (3)  The term "gross receipts" as used herein does not

  2  include gross receipts of any person derived from:

  3         (a)  The sale of natural gas to a public or private

  4  utility, including a municipal corporation or rural electric

  5  cooperative association, either for resale or for use as fuel

  6  in the generation of electricity;

  7         (b)  The sale of electricity to a public or private

  8  utility, including a municipal corporation or rural electric

  9  cooperative association, for resale within the state, or as

10  part of an electrical interchange agreement or contract

11  between such utilities for the purpose of transferring more

12  economically generated power; or

13         (c)  The sale of telecommunication services for resale

14  of telecommunication services wholly or partially within this

15  state, which includes, for purposes of this subsection, the

16  sale of telecommunication services to a person reselling such

17  telecommunication services by way of a prepaid telephone

18  calling card as defined in s. 212.05(1)(e)1.b.;

19

20  provided the person deriving gross receipts from such sale

21  demonstrates that a resale in fact occurred and complies with

22  the following requirements: A resale in this state must be in

23  strict compliance with the rules and regulations of the

24  Department of Revenue; and any person making a sale for resale

25  in this state which is not in strict compliance with the rules

26  and regulations of the Department of Revenue shall be liable

27  for and pay the tax. Any person making a sale for resale in

28  this state may, through an informal protest provided for in s.

29  213.21 and the rules of the Department of Revenue, provide the

30  department with evidence of the exempt status of a sale.  The

31  department shall adopt rules which provide that valid proof

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  1  and documentation of the resale in this state by a person

  2  making the sale for resale in this state will be accepted by

  3  the department when submitted during the protest period but

  4  will not be accepted when submitted in any proceeding under

  5  chapter 120 or any circuit court action instituted under

  6  chapter 72.

  7         (4)  Gross receipts subject to the tax imposed by this

  8  section shall not include receipts from sales or leases of

  9  telecommunications service for use in the conduct of a

10  telecommunications service for hire or otherwise for resale,

11  including resale of telecommunication services paid by using a

12  prepaid telephone calling card as defined in s.

13  212.05(1)(e)1.b.

14         Section 3.  Paragraph (b) of subsection (2) of section

15  203.012, Florida Statutes, is amended to read:

16         203.012  Definitions.--As used in this chapter:

17         (1)  The term "access charge" or "right of access"

18  means any charge to any person for the right to use or for the

19  use of a telephone system which includes equipment,

20  facilities, or services to originate or terminate any of the

21  services defined in subsection (4), subsection (5), subsection

22  (6), or subsection (7) and which specifically includes

23  customer access line charges, which includes the gross amount

24  paid by subscribers and users in this state for access into

25  the intrastate or interstate interexchange network as

26  authorized by the Federal Communications Commission or the

27  Florida Public Service Commission.

28         (2)

29         (b)  Gross receipts for telecommunication services do

30  not include:

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  1         1.  Charges for customer premises equipment, including

  2  such equipment that is leased or rented by the customer from

  3  any source;

  4         2.  Charges made to the public for commercial or cable

  5  television, unless it is used for two-way communication;

  6  however, if such two-way communication service is separately

  7  billed, only the charges made for two-way communication

  8  service will be subject to tax hereunder;

  9         3.  Charges made by hotels and motels, which are

10  required under the provisions of s. 212.03 to collect

11  transient rentals tax from tenants and lessees, for local

12  telephone service or toll telephone service, when such charge

13  occurs incidental to the right of occupancy in such hotel or

14  motel;

15         4.  Connection and disconnection charges; move or

16  change charges; suspension of service charges; and service

17  order, number change, and restoration charges; or

18         5.  Charges for services or items of equipment supplied

19  by providers of the telecommunication services described in

20  paragraph (5)(b), such as maintenance charges, equipment

21  sales, or rental which are incidental to the provision of such

22  telecommunication services, provided such charges are

23  separately stated, itemized, or described on the bill,

24  invoice, or other tangible evidence of the provision of such

25  service; or.

26         6.  Charges for telecommunication services which are

27  paid by using a prepaid telephone calling card as defined in

28  s. 212.05(1)(e)1.b.

29         Section 4.  Paragraph (e) of subsection (1) of section

30  212.05, Florida Statutes, is amended to read:

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  1         212.05  Sales, storage, use tax.--It is hereby declared

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

  3  taxable privilege who engages in the business of selling

  4  tangible personal property at retail in this state, including

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

  6  furnishes any of the things or services taxable under this

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

  8  any item or article of tangible personal property as defined

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

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

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

12  due and payable as follows:

13         (e)1.  At the rate of 6 percent on charges for:

14         a.  All telegraph messages and long-distance telephone

15  calls beginning and terminating in this state,

16  telecommunication service as defined in s. 203.012, and those

17  services described in s. 203.012(2)(a), except that the tax

18  rate for charges for telecommunication service is 7 percent.

19  No tax shall be due under this paragraph on a long-distance

20  telephone call or telecommunication service that is sold by

21  way of a prepaid telephone calling card that is taxable under

22  sub-subparagraph b.

23         b.  The tax on calls made with a Prepaid telephone

24  calling cards. The tax imposed by this sub-subparagraph card

25  shall be collected at the time of sale or recharge of the card

26  and remitted by the dealer selling or recharging a prepaid

27  telephone calling card.

28         (I)  A prepaid telephone calling card or authorization

29  number means the right to exclusively make telephone calls

30  that must be paid for in advance and that enable the

31  origination of calls using an access number, prepaid wireless

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  1  mobile account, or authorization code or number, whether

  2  manually or electronically dialed.

  3         (II)  If the sale or recharge of the prepaid telephone

  4  calling card does not take place at the dealer's place of

  5  business, it shall be deemed to take place at the customer's

  6  shipping address or, if no item is shipped, at the customer's

  7  address or the location associated with the customer's mobile

  8  telephone number.

  9         (III)  The prepaid telephone calling phone card

10  constitutes property in this state and subjects the selling

11  dealer to the jurisdiction of this state for purposes of this

12  subsection.

13         c.b.  Any television system program service.

14         d.c.  The installation of telecommunication and

15  telegraphic equipment.

16         e.d.  Electrical power or energy, except that the tax

17  rate for charges for electrical power or energy is 7 percent.

18         2.  For purposes of this chapter, "television system

19  program service" means the transmitting, by any means, of any

20  audio or video signal to a subscriber for other than

21  retransmission, or the installing, connecting, reconnecting,

22  disconnecting, moving, or changing of any equipment related to

23  such service.  For purposes of this chapter, the term

24  "telecommunication service" does not include local service

25  provided through a pay telephone. The provisions of s.

26  212.17(3), regarding credit for tax paid on charges

27  subsequently found to be worthless, shall be equally

28  applicable to any tax paid under the provisions of this

29  section on charges for telecommunication or telegraph services

30  or electric power subsequently found to be uncollectible. The

31  word "charges" in this paragraph does not include any excise

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  1  or similar tax levied by the Federal Government, any political

  2  subdivision of the state, or any municipality upon the

  3  purchase or sale of telecommunication, television system

  4  program, or telegraph service or electric power, which tax is

  5  collected by the seller from the purchaser.

  6         3.  Telegraph messages and telecommunication services

  7  that which originate or terminate in this state, other than

  8  interstate private communication services, and are billed to a

  9  customer, telephone number, or device located within this

10  state are taxable under sub-subparagraph 1.a. this paragraph.

11  Interstate private communication services are taxable under

12  sub-subparagraph 1.a. this paragraph as follows:

13         a.  One hundred percent of the charge imposed at each

14  channel termination point within this state;

15         b.  One hundred percent of the charge imposed for the

16  total channel mileage between each channel termination point

17  within this state; and

18         c.  The portion of the interstate interoffice channel

19  mileage charge as determined by multiplying said charge times

20  a fraction, the numerator of which is the air miles between

21  the last channel termination point in this state and the

22  vertical and horizontal coordinates, 7856 and 1756,

23  respectively, and the denominator of which is the air miles

24  between the last channel termination point in this state and

25  the first channel termination point outside this state.  The

26  denominator of this fraction shall be adjusted, if necessary,

27  by adding the numerator of said fraction to similarly

28  determined air miles in the state in which the other channel

29  termination point is located, so that the summation of the

30  apportionment factor for this state and the apportionment

31  factor for the other state is not greater than one, to ensure

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  1  that no more than 100 percent of the interstate interoffice

  2  channel mileage charge can be taxed by this state and another

  3  state.

  4         4.  The tax imposed pursuant to sub-subparagraph 1.a.

  5  this paragraph shall not exceed $50,000 per calendar year on

  6  charges to any person for interstate telecommunications

  7  services defined in s. 203.012(4) and (7)(b), if the majority

  8  of such services used by such person are for communications

  9  originating outside of this state and terminating in this

10  state.  This exemption shall only be granted to holders of a

11  direct pay permit issued pursuant to this subparagraph.  No

12  refunds shall be given for taxes paid prior to receiving a

13  direct pay permit. Upon application, the department may issue

14  a direct pay permit to the purchaser of telecommunications

15  services authorizing such purchaser to pay tax on such

16  services directly to the department. Any vendor furnishing

17  telecommunications services to the holder of a valid direct

18  pay permit shall be relieved of the obligation to collect and

19  remit the tax on such service. Tax payments and returns

20  pursuant to a direct pay permit shall be monthly. For purposes

21  of this subparagraph, the term "person" shall be limited to a

22  single legal entity and shall not be construed as meaning a

23  group or combination of affiliated entities or entities

24  controlled by one person or group of persons.

25         5.  If the sale of a television system program service,

26  as defined in this paragraph, also involves the sale of an

27  item exempt under s. 212.08(7)(j), the tax shall be applied to

28  the value of the taxable service when it is sold separately.

29  If the company does not offer this service separately, the

30  consideration paid shall be separately identified and stated

31  with respect to the taxable and exempt portions of the

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  1  transaction as a condition of the exemption, except that the

  2  amount identified as taxable shall not be less than the cost

  3  of the service.

  4         Section 5.  Paragraph (b) of subsection (2) of section

  5  212.054, Florida Statutes, is amended to read:

  6         212.054  Discretionary sales surtax; limitations,

  7  administration, and collection.--

  8         (2)

  9         (b)  However:

10         1.  The tax on any sales amount above $5,000 on any

11  item of tangible personal property and on long-distance

12  telephone service shall not be subject to the surtax.

13  However, charges for prepaid telephone calling cards, as

14  defined in s. 212.05(1)(e)1.b., shall be subject to the

15  surtax. For purposes of administering the $5,000 limitation on

16  an item of tangible personal property, if two or more taxable

17  items of tangible personal property are sold to the same

18  purchaser at the same time and, under generally accepted

19  business practice or industry standards or usage, are normally

20  sold in bulk or are items that, when assembled, comprise a

21  working unit or part of a working unit, such items must be

22  considered a single item for purposes of the $5,000 limitation

23  when supported by a charge ticket, sales slip, invoice, or

24  other tangible evidence of a single sale or rental. The

25  limitation provided in this subparagraph does not apply to the

26  sale of any other service.

27         2.  In the case of utility, telecommunication, or

28  television system program services billed on or after the

29  effective date of any such surtax, the entire amount of the

30  charge tax for utility, telecommunication, or television

31  system program services shall be subject to the surtax.  In

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  1  the case of utility, telecommunication, or television system

  2  program services billed after the last day the surtax is in

  3  effect, the entire amount of the charge tax on said items

  4  shall not be subject to the surtax.

  5         3.  In the case of written contracts which are signed

  6  prior to the effective date of any such surtax for the

  7  construction of improvements to real property or for

  8  remodeling of existing structures, the surtax shall be paid by

  9  the contractor responsible for the performance of the

10  contract.  However, the contractor may apply for one refund of

11  any such surtax paid on materials necessary for the completion

12  of the contract.  Any application for refund shall be made no

13  later than 15 months following initial imposition of the

14  surtax in that county.  The application for refund shall be in

15  the manner prescribed by the department by rule.  A complete

16  application shall include proof of the written contract and of

17  payment of the surtax.  The application shall contain a sworn

18  statement, signed by the applicant or its representative,

19  attesting to the validity of the application.  The department

20  shall, within 30 days after approval of a complete

21  application, certify to the county information necessary for

22  issuance of a refund to the applicant. Counties are hereby

23  authorized to issue refunds for this purpose and shall set

24  aside from the proceeds of the surtax a sum sufficient to pay

25  any refund lawfully due.  Any person who fraudulently obtains

26  or attempts to obtain a refund pursuant to this subparagraph,

27  in addition to being liable for repayment of any refund

28  fraudulently obtained plus a mandatory penalty of 100 percent

29  of the refund, is guilty of a felony of the third degree,

30  punishable as provided in s. 775.082, s. 775.083, or s.

31  775.084.

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  1         4.  In the case of any vessel, railroad, or motor

  2  vehicle common carrier entitled to partial exemption from tax

  3  imposed under this chapter pursuant to s. 212.08(4), (8), or

  4  (9), the basis for imposition of surtax shall be the same as

  5  provided in s. 212.08 and the ratio shall be applied each

  6  month to total purchases in this state of property qualified

  7  for proration which is delivered or sold in the taxing county

  8  to establish the portion used and consumed in intracounty

  9  movement and subject to surtax.

10         Section 6.  This act shall take effect July 1, 2000.

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12            *****************************************

13                          SENATE SUMMARY

14    Relates to the taxation of prepaid telephone calling
      cards. Excludes certain services paid for by such cards
15    from the public service tax. Amends the definition of the
      term "gross receipts" for purposes of ch. 203, F.S.
16    Lowers from 7 percent to 6 percent the amount of the
      sales tax imposed on charges paid by such cards. Provides
17    that the local option sales tax applies to the cards.

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