Senate Bill sb1776

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    Florida Senate - 2003                                  SB 1776

    By the Committee on Finance and Taxation; and Senator Lynn





    32-1059B-03

  1                      A bill to be entitled

  2         An act relating to the Streamlined Sales and

  3         Use Tax Agreement; amending s. 212.02, F.S.;

  4         redefining the terms "lease," "let," "rental,"

  5         "sales price," and "tangible personal property"

  6         and defining the terms "agent," "seller,"

  7         "certified service provider," "direct mail,"

  8         and "prewritten computer software" for purposes

  9         of sales and use taxes; providing

10         applicability; amending s. 212.05, F.S.;

11         deleting provisions relating to the rental or

12         lease of motor vehicles; providing for

13         determination of the location of the sale or

14         recharge of prepaid calling arrangements;

15         amending s. 212.054, F.S.; providing the time

16         for applying changes in local option tax rates;

17         providing guidelines for determining the situs

18         of certain transactions; providing for notice

19         of a change in a local option sales tax rate;

20         providing for applicability of s. 202.22(2),

21         F.S., relating to determination of local tax

22         situs, for the purpose of providing and

23         maintaining a database of sales and use tax

24         rates for local jurisdictions; amending s.

25         212.06, F.S.; defining terms; providing general

26         rules for determining the location of

27         transactions involving the retail sale of

28         tangible personal property, digital goods, or

29         services and for the lease or rental of

30         tangible personal property; requiring certain

31         business purchasers to obtain multiple points

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  1         of use exemption forms; providing for use of

  2         such forms; requiring certain purchasers of

  3         direct mail to obtain a direct mail form;

  4         providing for the use of such form; amending s.

  5         212.08, F.S., relating to exemptions from the

  6         sales and use tax; defining and redefining

  7         terms used with respect to the exemption for

  8         general groceries; defining and redefining

  9         terms used with respect to the exemption for

10         medical products and supplies; revising that

11         exemption; amending s. 212.095, F.S.; revising

12         provisions relating to refunds; amending s.

13         212.17, F.S.; prescribing additional guidelines

14         and procedures with respect to dealer credits

15         for taxes paid on worthless accounts; creating

16         s. 213.052, F.S.; providing for notice of state

17         sales or use tax rate changes; creating s.

18         213.0521, F.S.; providing the effective date

19         for state sales and use tax rate changes;

20         amending s. 213.21, F.S.; providing for amnesty

21         to certain sellers for uncollected or unpaid

22         sales and use taxes; amending s. 213.256, F.S.,

23         relating to simplified sales and use tax

24         administration; defining terms; providing that

25         authority to administer the Streamlined Sales

26         and Use Tax Agreement rests with a governing

27         board comprised of representatives of member

28         states; providing for continuing effect of the

29         agreement; providing for annual recertification

30         by member states; creating s. 213.2567, F.S.;

31         providing for the registration of sellers, the

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  1         certification of a person as a certified

  2         service provider, and the certification of a

  3         software program as a certified automated

  4         system by the governing board under the

  5         Streamlined Sales and Use Tax Agreement;

  6         amending s. 212.055, F.S.; conforming a

  7         cross-reference; repealing s. 212.0596(6),

  8         F.S., relating to the exemption from collecting

  9         and remitting any local option surtax for

10         certain dealers who make mail order sales;

11         declaring legislative intent; providing an

12         effective date.

13

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

15

16         Section 1.  Paragraph (g) of subsection (10) and

17  subsections (16) and (19) of section 212.02, Florida Statutes,

18  are amended, and subsections (35), (36), (37), (38), and (39)

19  are added to that section, to read:

20         212.02  Definitions.--The following terms and phrases

21  when used in this chapter have the meanings ascribed to them

22  in this section, except where the context clearly indicates a

23  different meaning:

24         (10)  "Lease," "let," or "rental" means leasing or

25  renting of living quarters or sleeping or housekeeping

26  accommodations in hotels, apartment houses, roominghouses,

27  tourist or trailer camps and real property, the same being

28  defined as follows:

29         (g)1.  "Lease," "let," or "rental" also means any

30  transfer of possession or control of tangible personal

31  property for a fixed or indeterminate term for consideration.

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  1  A lease or rental may include future options to purchase or

  2  extend. This definition shall be used for sales and use tax

  3  purposes regardless of whether a transaction is characterized

  4  as a lease or rental under generally accepted accounting

  5  principles, the Internal Revenue Code, the Uniform Commercial

  6  Code, or other provisions of federal, state, or local law.

  7  This definition includes agreements covering motor vehicles

  8  and trailers when the amount of consideration may be increased

  9  or decreased by reference to the amount realized upon sale or

10  disposition of the property as defined in 26 U.S.C. s.

11  7701(h)(1). This definition does not include:

12         a.  A transfer of possession or control of property

13  under a security agreement or deferred payment plan that

14  requires the transfer of title upon completion of the required

15  payments;

16         b.  A transfer of possession or control of property

17  under an agreement that requires the transfer of title upon

18  completion of required payments and payment of an option price

19  that does not exceed the greater of $100 or 1 percent of the

20  total required payments; or

21         c.  Providing tangible personal property along with an

22  operator for a fixed or indeterminate period of time. A

23  condition of this exclusion is that the operator is necessary

24  for the equipment to perform as designed. For the purpose of

25  this sub-subparagraph, an operator must do more than maintain,

26  inspect, or set up the tangible personal property. the leasing

27  or rental of tangible personal property and the possession or

28  use thereof by the lessee or rentee for a consideration,

29  without transfer of the title of such property, except as

30  expressly provided to the contrary herein.

31

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  1         2.  The term "lease," "let," or "rental" does not mean

  2  hourly, daily, or mileage charges, to the extent that such

  3  charges are subject to the jurisdiction of the United States

  4  Interstate Commerce Commission, when such charges are paid by

  5  reason of the presence of railroad cars owned by another on

  6  the tracks of the taxpayer, or charges made pursuant to car

  7  service agreements. The term "lease," "let," "rental," or

  8  "license" does not include payments made to an owner of

  9  high-voltage bulk transmission facilities in connection with

10  the possession or control of such facilities by a regional

11  transmission organization, independent system operator, or

12  similar entity under the jurisdiction of the Federal Energy

13  Regulatory Commission. However, where two taxpayers, in

14  connection with the interchange of facilities, rent or lease

15  property, each to the other, for use in providing or

16  furnishing any of the services mentioned in s. 166.231, the

17  term "lease or rental" means only the net amount of rental

18  involved.

19         (16)  "Sales price" means the total amount paid for

20  tangible personal property, including any services that are a

21  part of the sale, valued in money, whether paid in money or

22  otherwise, and includes any amount for which credit is given

23  to the purchaser by the seller, without any deduction

24  therefrom on account of the cost of the property sold, the

25  cost of materials used, labor or service cost, interest

26  charged, losses, or any other expense whatsoever. "Sales

27  price" also includes all delivery charges. "Sales price" also

28  includes the consideration for a transaction which requires

29  both labor and material to alter, remodel, maintain, adjust,

30  or repair tangible personal property. Trade-ins or discounts

31  allowed and taken at the time of sale shall not be included

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  1  within the purview of this subsection if separately stated on

  2  the invoice, bill of sale, or similar document given to the

  3  purchaser. "Sales price" also includes the full face value of

  4  any coupon used by a purchaser to reduce the price paid to a

  5  retailer for an item of tangible personal property; where the

  6  retailer will be reimbursed for such coupon, in whole or in

  7  part, by the manufacturer of the item of tangible personal

  8  property; or whenever it is not practicable for the retailer

  9  to determine, at the time of sale, the extent to which

10  reimbursement for the coupon will be made. The term "sales

11  price" does not include interest, financing, and carrying

12  charges from credit extended on the sale of personal property

13  or services, if the amount is separately stated on the

14  invoice, bill of sale, or similar document given to the

15  purchaser. The term "sales price" does not include any taxes

16  legally imposed directly on the purchaser which are separately

17  stated on the invoice, bill of sale, or similar document given

18  to the purchaser. The term "sales price" does not include

19  federal excise taxes imposed upon the retailer on the sale of

20  tangible personal property. The term "sales price" does

21  include federal manufacturers' excise taxes, even if the

22  federal tax is listed as a separate item on the invoice.

23         (19)  "Tangible personal property" means and includes

24  personal property which may be seen, weighed, measured, or

25  touched or is in any manner perceptible to the senses,

26  including electric power or energy, water, gas, steam,

27  prewritten computer software, boats, motor vehicles and mobile

28  homes as defined in s. 320.01(1) and (2), aircraft as defined

29  in s. 330.27, and all other types of vehicles.  The term

30  "tangible personal property" does not include stocks, bonds,

31  notes, insurance, or other obligations or securities;

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  1  intangibles as defined by the intangible tax law of the state;

  2  or pari-mutuel tickets sold or issued under the racing laws of

  3  the state.

  4         (35)  "Agent" means a person appointed by a principal

  5  or authorized to act for the principal in a transaction

  6  involving the sale of an item of tangible personal property.

  7  The term also means a person appointed by a seller to

  8  represent the seller before the states that are signatories to

  9  the Streamlined Sales and Use Tax Agreement.

10         (36)  "Seller" means any person making sales, leases,

11  or rentals of personal property or services.

12         (37)  "Certified service provider" means an agent

13  certified jointly by the states that are signatories to the

14  Streamlined Sales and Use Tax Agreement to perform all of the

15  seller's sales tax functions, other than the seller's

16  obligation to remit tax on its own purchases.

17         (38)  "Direct mail" means printed material delivered or

18  distributed by United States mail or other delivery service to

19  a mass audience or to addressees on a mailing list provided by

20  the purchaser or at the direction of the purchaser when the

21  cost of the items is not billed directly to the recipients.

22  The term includes tangible personal property supplied directly

23  or indirectly by the purchaser to the direct mail seller for

24  inclusion in the package containing the printed material. The

25  term does not include multiple items of printed material

26  delivered to a single address.

27         (39)  "Prewritten computer software" means computer

28  software, including prewritten upgrades, which is not designed

29  and developed by the author or other creator to the

30  specifications of a specific purchaser. The combining of two

31  or more "prewritten computer software" programs or prewritten

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  1  portions thereof does not cause the combination to be other

  2  than "prewritten computer software." The term includes

  3  software designed and developed by the author or other creator

  4  to the specifications of a specific purchaser when it is sold

  5  to a person other than that purchaser. When a person modifies

  6  or enhances computer software of which the person is not the

  7  author or creator, the person shall be deemed to be the author

  8  or creator only of such person's modifications or

  9  enhancements. Prewritten computer software, or a prewritten

10  portion thereof, that is modified or enhanced to any degree,

11  when such modification or enhancement is designed and

12  developed to the specifications of a specific purchaser,

13  remains "prewritten computer software"; however, when there is

14  a reasonable, separately stated charge or an invoice or other

15  statement of the price given to the purchaser for such

16  modification or enhancement, such modification or enhancement

17  does not constitute "prewritten computer software."

18         Section 2.  The amendment of the terms "lease," "let,"

19  and "rental" in section 212.02, Florida Statutes, made by this

20  act applies prospectively only, from July 1, 2003, and does

21  not apply retroactively to leases or rentals existing before

22  that date.

23         Section 3.  Paragraphs (c) and (e) of subsection (1) of

24  section 212.05, Florida Statutes, are amended to read:

25         212.05  Sales, storage, use tax.--It is hereby declared

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

27  taxable privilege who engages in the business of selling

28  tangible personal property at retail in this state, including

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

30  furnishes any of the things or services taxable under this

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

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  1  any item or article of tangible personal property as defined

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

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

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

  5  due and payable as follows:

  6         (c)  At the rate of 6 percent of the gross proceeds

  7  derived from the lease or rental of tangible personal

  8  property, as defined herein.; however, the following special

  9  provisions apply to the lease or rental of motor vehicles:

10         1.  When a motor vehicle is leased or rented for a

11  period of less than 12 months:

12         a.  If the motor vehicle is rented in Florida, the

13  entire amount of such rental is taxable, even if the vehicle

14  is dropped off in another state.

15         b.  If the motor vehicle is rented in another state and

16  dropped off in Florida, the rental is exempt from Florida tax.

17         2.  Except as provided in subparagraph 3., for the

18  lease or rental of a motor vehicle for a period of not less

19  than 12 months, sales tax is due on the lease or rental

20  payments if the vehicle is registered in this state; provided,

21  however, that no tax shall be due if the taxpayer documents

22  use of the motor vehicle outside this state and tax is being

23  paid on the lease or rental payments in another state.

24         3.  The tax imposed by this chapter does not apply to

25  the lease or rental of a commercial motor vehicle as defined

26  in s. 316.003(66)(a) to one lessee or rentee for a period of

27  not less than 12 months when tax was paid on the purchase

28  price of such vehicle by the lessor. To the extent tax was

29  paid with respect to the purchase of such vehicle in another

30  state, territory of the United States, or the District of

31  Columbia, the Florida tax payable shall be reduced in

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  1  accordance with the provisions of s. 212.06(7). This paragraph

  2  subparagraph shall only be available when the lease or rental

  3  of such property is an established business or part of an

  4  established business or the same is incidental or germane to

  5  such business.

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

  7         a.  Prepaid calling arrangements. The tax on charges

  8  for prepaid calling arrangements shall be collected at the

  9  time of sale and remitted by the selling dealer.

10         (I)  "Prepaid calling arrangement" means the separately

11  stated retail sale by advance payment of communications

12  services that consist exclusively of telephone calls

13  originated by using an access number, authorization code, or

14  other means that may be manually, electronically, or otherwise

15  entered and that are sold in predetermined units or dollars

16  whose number declines with use in a known amount.

17         (II)  The sale or recharge of the prepaid calling

18  arrangement is deemed to take place in accordance with

19  paragraph 212.06(3)(d). In the case of a sale of a mobile

20  communications service that is a prepaid calling arrangement,

21  the retail sale is sourced at If the sale or recharge of the

22  prepaid calling arrangement does not take place at the

23  dealer's place of business, it shall be deemed to take place

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

25  at the customer's address or the location associated with the

26  customer's mobile telephone number.

27         (III)  The sale or recharge of a prepaid calling

28  arrangement shall be treated as a sale of tangible personal

29  property for purposes of this chapter, whether or not a

30  tangible item evidencing such arrangement is furnished to the

31  purchaser, and such sale within this state subjects the

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  1  selling dealer to the jurisdiction of this state for purposes

  2  of this subsection.

  3         b.  The installation of telecommunication and

  4  telegraphic equipment.

  5         c.  Electrical power or energy, except that the tax

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

  7         2.  The provisions of s. 212.17(3), regarding credit

  8  for tax paid on charges subsequently found to be worthless,

  9  shall be equally applicable to any tax paid under the

10  provisions of this section on charges for prepaid calling

11  arrangements, telecommunication or telegraph services, or

12  electric power subsequently found to be uncollectible. The

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

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

15  subdivision of the state, or any municipality upon the

16  purchase, sale, or recharge of prepaid calling arrangements or

17  upon the purchase or sale of telecommunication, television

18  system program, or telegraph service or electric power, which

19  tax is collected by the seller from the purchaser.

20         Section 4.  Section 212.054, Florida Statutes, is

21  amended to read:

22         212.054  Discretionary sales surtax; limitations,

23  administration, and collection.--

24         (1)  No general excise tax on sales shall be levied by

25  the governing body of any county unless specifically

26  authorized in s. 212.055. Any general excise tax on sales

27  authorized pursuant to said section shall be administered and

28  collected exclusively as provided in this section.

29         (2)(a)  The tax imposed by the governing body of any

30  county authorized to so levy pursuant to s. 212.055 shall be a

31  discretionary surtax on all transactions occurring in the

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  1  county which transactions are subject to the state tax imposed

  2  on sales, use, services, rentals, admissions, and other

  3  transactions by this chapter and communications services as

  4  defined for purposes of chapter 202. The surtax, if levied,

  5  shall be computed as the applicable rate or rates authorized

  6  pursuant to s. 212.055 times the amount of taxable sales and

  7  taxable purchases representing such transactions.  If the

  8  surtax is levied on the sale of an item of tangible personal

  9  property or on the sale of a service, the surtax shall be

10  computed by multiplying the rate imposed by the county within

11  which the sale occurs by the amount of the taxable sale. The

12  sale of an item of tangible personal property or the sale of a

13  service is not subject to the surtax if the property, the

14  service, or the tangible personal property representing the

15  service is delivered within a county that does not impose a

16  discretionary sales surtax.

17         (b)  However:

18         1.  The sales amount above $5,000 on any item of

19  tangible personal property shall not be subject to the surtax.

20  However, charges for prepaid calling arrangements, as defined

21  in s. 212.05(1)(e)1.a., shall be subject to the surtax. For

22  purposes of administering the $5,000 limitation on an item of

23  tangible personal property, if two or more taxable items of

24  tangible personal property are sold to the same purchaser at

25  the same time and, under generally accepted business practice

26  or industry standards or usage, are normally sold in bulk or

27  are items that, when assembled, comprise a working unit or

28  part of a working unit, such items must be considered a single

29  item for purposes of the $5,000 limitation when supported by a

30  charge ticket, sales slip, invoice, or other tangible evidence

31  of a single sale or rental.

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  1         2.  In the case of utility services covering a period

  2  starting before and ending after the effective date of the

  3  surtax, the rate shall apply as follows:

  4         a.  In the case of a rate adoption or increase, the new

  5  rate shall apply to the first billing period starting on or

  6  after the effective date of the surtax.

  7         b.  In the case of a rate decrease or termination, the

  8  new rate shall apply to bills rendered on or after the

  9  effective date of the surtax. billed on or after the effective

10  date of any such surtax, the entire amount of the charge for

11  utility services shall be subject to the surtax. In the case

12  of utility services billed after the last day the surtax is in

13  effect, the entire amount of the charge on said items shall

14  not be subject to the surtax.

15

16  "Utility service," as used in this section, does not include

17  any communications services as defined in chapter 202.

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

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

20  construction of improvements to real property or for

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

22  the contractor responsible for the performance of the

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

24  any such surtax paid on materials necessary for the completion

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

26  later than 15 months following initial imposition of the

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

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

29  application shall include proof of the written contract and of

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

31  statement, signed by the applicant or its representative,

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  1  attesting to the validity of the application.  The department

  2  shall, within 30 days after approval of a complete

  3  application, certify to the county information necessary for

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

  5  authorized to issue refunds for this purpose and shall set

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

  7  any refund lawfully due.  Any person who fraudulently obtains

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

  9  in addition to being liable for repayment of any refund

10  fraudulently obtained plus a mandatory penalty of 100 percent

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

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

13  775.084.

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

15  vehicle common carrier entitled to partial exemption from tax

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

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

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

19  month to total purchases in this state of property qualified

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

21  to establish the portion used and consumed in intracounty

22  movement and subject to surtax.

23         (3)  For purposes of this section, a retail sale,

24  lease, or rental of tangible personal property, a digital

25  good, or a service shall be deemed to have occurred in a

26  county imposing the surtax in accordance with s. 212.06(3).

27         (4)(3)  For the purpose of this section, a transaction

28  shall be deemed to have occurred in a county imposing the

29  surtax when:

30         (a)1.  Notwithstanding subsection (3), the retail sale

31  of includes an item of tangible personal property that is a

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  1  modular home or manufactured home that is not a mobile home, a

  2  service, or tangible personal property representing a service,

  3  and the item of tangible personal property, the service, or

  4  the tangible personal property representing the service is

  5  delivered within the county.  If there is no reasonable

  6  evidence of delivery of a service, the sale of a service is

  7  deemed to occur in the county in which the purchaser accepts

  8  the bill of sale.

  9         2.  Notwithstanding subsection (3), the retail sale,

10  excluding lease or rental, of any motor vehicle that does not

11  qualify as "transportation equipment," as defined in s.

12  212.06(3)(g), or the retail sale of a mobile home of a class

13  or type which is required to be registered in this state or in

14  any other state shall be deemed to have occurred only in the

15  county identified as the residence address of the purchaser on

16  the registration or title document for such property.

17         3.  The real property that is leased or rented is

18  located in the county.

19         4.  The transient rental transaction occurs in the

20  county.

21         5.  Notwithstanding subsection (3), the delivery

22  derived from the retail sale, excluding lease or rental, of

23  any aircraft that does not qualify as "transportation

24  equipment" as defined in s. 212.06(3)(g) or any boat of a

25  class or type that is required to be registered, licensed,

26  titled, or documented in this state or by the United States

27  Government to a location in the county. However, this

28  subparagraph does not apply to the use or consumption of items

29  upon which a like tax of equal or greater amount has been

30  lawfully imposed and paid outside the county.

31

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  1         6.(b)  The event for which an admission is charged is

  2  located in the county.

  3         7.  The coin-operated amusement or vending machine is

  4  located in the county.

  5         8.  The florist taking the original order to sell

  6  tangible personal property is located in the county,

  7  notwithstanding any other provision of this section.

  8         (c)  The consumer of utility services is located in the

  9  county.

10         (b)(d)1.  The user of any aircraft or boat of a class

11  or type which is required to be registered, licensed, titled,

12  or documented in this state or by the United States Government

13  imported into the county for use, consumption, distribution,

14  or storage to be used or consumed in the county is located in

15  the county.

16         1.2.  However, it shall be presumed that such items

17  used outside the county for 6 months or longer before being

18  imported into the county were not purchased for use in the

19  county, except as provided in s. 212.06(8)(b).

20         2.3.  This paragraph does not apply to the use or

21  consumption of items upon which a like tax of equal or greater

22  amount has been lawfully imposed and paid outside the county.

23         (c)(e)  The purchaser of any motor vehicle or mobile

24  home of a class or type which is required to be registered in

25  this state is a resident of the taxing county as determined by

26  the address appearing on or to be reflected on the

27  registration document for such property.

28         (d)(f)1.  Any motor vehicle or mobile home of a class

29  or type which is required to be registered in this state is

30  imported from another state into the taxing county by a user

31

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  1  residing therein for the purpose of use, consumption,

  2  distribution, or storage in the taxing county.

  3         2.  However, it shall be presumed that such items used

  4  outside the taxing county for 6 months or longer before being

  5  imported into the county were not purchased for use in the

  6  county.

  7         (g)  The real property which is leased or rented is

  8  located in the county.

  9         (h)  The transient rental transaction occurs in the

10  county.

11         (i)  The delivery of any aircraft or boat of a class or

12  type which is required to be registered, licensed, titled, or

13  documented in this state or by the United States Government is

14  to a location in the county. However, this paragraph does not

15  apply to the use or consumption of items upon which a like tax

16  of equal or greater amount has been lawfully imposed and paid

17  outside the county.

18         (e)(j)  The dealer owing a use tax on purchases or

19  leases is located in the county.

20         (f)(k)  The delivery of tangible personal property

21  other than that described in paragraph (b) (d), paragraph (c)

22  (e), or paragraph (d) (f) is made to a location outside the

23  county, but the property is brought into the county within 6

24  months after delivery, in which event, the owner must pay the

25  surtax as a use tax.

26         (l)  The coin-operated amusement or vending machine is

27  located in the county.

28         (m)  The florist taking the original order to sell

29  tangible personal property is located in the county,

30  notwithstanding any other provision of this section.

31

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  1         (5)(a)(4)(a)  The department shall administer, collect,

  2  and enforce the tax authorized under s. 212.055 pursuant to

  3  the same procedures used in the administration, collection,

  4  and enforcement of the general state sales tax imposed under

  5  the provisions of this chapter, except as provided in this

  6  section.  The provisions of this chapter regarding interest

  7  and penalties on delinquent taxes shall apply to the surtax.

  8  Discretionary sales surtaxes shall not be included in the

  9  computation of estimated taxes pursuant to s. 212.11.

10  Notwithstanding any other provision of law, a dealer need not

11  separately state the amount of the surtax on the charge

12  ticket, sales slip, invoice, or other tangible evidence of

13  sale.  For the purposes of this section and s. 212.055, the

14  "proceeds" of any surtax means all funds collected and

15  received by the department pursuant to a specific

16  authorization and levy under s. 212.055, including any

17  interest and penalties on delinquent surtaxes.

18         (b)  The proceeds of a discretionary sales surtax

19  collected by the selling dealer located in a county which

20  imposes the surtax shall be returned, less the cost of

21  administration, to the county where the selling dealer is

22  located. The proceeds shall be transferred to the

23  Discretionary Sales Surtax Clearing Trust Fund. A separate

24  account shall be established in such trust fund for each

25  county imposing a discretionary surtax.  The amount deducted

26  for the costs of administration shall not exceed 3 percent of

27  the total revenue generated for all counties levying a surtax

28  authorized in s. 212.055.  The amount deducted for the costs

29  of administration shall be used only for those costs which are

30  solely and directly attributable to the surtax.  The total

31  cost of administration shall be prorated among those counties

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  1  levying the surtax on the basis of the amount collected for a

  2  particular county to the total amount collected for all

  3  counties.  No later than March 1 of each year, the department

  4  shall submit a written report which details the expenses and

  5  amounts deducted for the costs of administration to the

  6  President of the Senate, the Speaker of the House of

  7  Representatives, and the governing authority of each county

  8  levying a surtax.  The department shall distribute the moneys

  9  in the trust fund each month to the appropriate counties,

10  unless otherwise provided in s. 212.055.

11         (c)1.  Any dealer located in a county that does not

12  impose a discretionary sales surtax but who collects the

13  surtax due to sales of tangible personal property or services

14  delivered outside the county shall remit monthly the proceeds

15  of the surtax to the department to be deposited into an

16  account in the Discretionary Sales Surtax Clearing Trust Fund

17  which is separate from the county surtax collection accounts.

18  The department shall distribute funds in this account using a

19  distribution factor determined for each county that levies a

20  surtax and multiplied by the amount of funds in the account

21  and available for distribution.  The distribution factor for

22  each county equals the product of:

23         a.  The county's latest official population determined

24  pursuant to s. 186.901;

25         b.  The county's rate of surtax; and

26         c.  The number of months the county has levied a surtax

27  during the most recent distribution period;

28

29  divided by the sum of all such products of the counties

30  levying the surtax during the most recent distribution period.

31

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  1         2.  The department shall compute distribution factors

  2  for eligible counties once each quarter and make appropriate

  3  quarterly distributions.

  4         3.  A county that fails to timely provide the

  5  information required by this section to the department

  6  authorizes the department, by such action, to use the best

  7  information available to it in distributing surtax revenues to

  8  the county.  If this information is unavailable to the

  9  department, the department may partially or entirely

10  disqualify the county from receiving surtax revenues under

11  this paragraph.  A county that fails to provide timely

12  information waives its right to challenge the department's

13  determination of the county's share, if any, of revenues

14  provided under this paragraph.

15         (5)  No discretionary sales surtax or increase or

16  decrease in the rate of any discretionary sales surtax shall

17  take effect on a date other than January 1.  No discretionary

18  sales surtax shall terminate on a day other than December 31.

19         (6)  The governing body of any county levying a

20  discretionary sales surtax shall enact an ordinance levying

21  the surtax in accordance with the procedures described in s.

22  125.66(2).

23         (7)(a)  Any adoption, repeal, or rate change of the

24  surtax by the governing body of any county levying a

25  discretionary sales surtax or the school board of any county

26  levying the school capital outlay surtax authorized by s.

27  212.055(6) is effective on January 1. A county or school board

28  adopting, repealing, or changing the rate of such tax shall

29  notify the department within 10 days after final adoption by

30  ordinance or referendum of an adoption, repeal imposition,

31  termination, or rate change of the surtax, but no later than

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  1  October 1 immediately preceding such January 1 November 16

  2  prior to the effective date. A county or school board

  3  adopting, repealing, or changing the rate of such tax shall

  4  notify the department by August 1 immediately preceding the

  5  January 1 effective date for the local rate change to apply to

  6  purchases from printed catalogs. The notice must specify the

  7  time period during which the surtax will be in effect and the

  8  rate and must include a copy of the ordinance and such other

  9  information as the department requires by rule. Failure to

10  timely provide such notification to the department shall

11  result in the delay of the effective date for a period of 1

12  year.

13         (b)  In addition to the notification required by

14  paragraph (a), the governing body of any county proposing to

15  levy a discretionary sales surtax or the school board of any

16  county proposing to levy the school capital outlay surtax

17  authorized by s. 212.055(6) shall notify the department by

18  September October 1 if the referendum or consideration of the

19  ordinance that would result in imposition, termination, or

20  rate change of the surtax is scheduled to occur on or after

21  September October 1 of that year.  Failure to timely provide

22  such notification to the department shall result in the delay

23  of the effective date for a period of 1 year.

24         (8)  The state shall provide notice of such adoption,

25  repeal, or change to all affected sellers by the November 1

26  immediately preceding the January 1 effective date. The state

27  shall apply a local rate change to purchases from printed

28  catalogs only on January 1 and must notify sellers of such

29  rate change by the September 1 immediately preceding such

30  January 1.

31

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  1         (9)(8)  With respect to any motor vehicle or mobile

  2  home of a class or type which is required to be registered in

  3  this state, the tax due on a transaction occurring in the

  4  taxing county as herein provided shall be collected from the

  5  purchaser or user incident to the titling and registration of

  6  such property, irrespective of whether such titling or

  7  registration occurs in the taxing county.

  8         (10)  For the purpose of the state providing and

  9  maintaining a database of all sales and use tax rates for all

10  local taxing jurisdictions in accordance with the Streamlined

11  Sales and Use Tax Agreement under s. 213.256, the provisions

12  of s. 202.22(2) shall apply.

13         (a)  A seller or certified service provider who

14  collects and remits the state and local sales and use tax

15  imposed by this chapter shall use the database provided under

16  s. 202.22(2).

17         (b)  A seller or certified service provider who

18  collects and remits the state and local sales and use tax

19  imposed under this chapter shall be held harmless from any

20  liability, including tax, interest, and penalties, which would

21  otherwise be due solely as a result of the seller or certified

22  service provider relying on an incorrect taxing jurisdiction

23  assignment.

24         (c)  The provisions of this subsection shall not apply

25  when the purchased product is received by the purchaser at the

26  business location of the seller.

27         Section 5.  Present subsections (3) through (16) of

28  section 212.06, Florida Statutes, are renumbered as

29  subsections (4) through (17), respectively, new subsection (3)

30  is added to that section, and present subsection (3) of that

31  section is amended to read:

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  1         212.06  Sales, storage, use tax; collectible from

  2  dealers; "dealer" defined; dealers to collect from purchasers;

  3  legislative intent as to scope of tax.--

  4         (3)  It is the intent of this chapter to apply this

  5  subsection to determine a seller's obligation to pay or

  6  collect and remit a sales or use tax with respect to the

  7  seller's retail sale of a product. This subsection does not

  8  affect the obligation of a purchaser or lessee to remit tax on

  9  the use of the product.

10         (a)  For purposes of this subsection, the terms

11  "receive" and "receipt" mean:

12         1.  Taking possession of tangible personal property;

13         2.  Making first use of services; or

14         3.  Taking possession or making first use of digital

15  goods, whichever comes first.

16

17  The terms do not include possession by a shipping company on

18  behalf of the purchaser.

19         (b)  For purposes of this subsection, the term

20  "product" means tangible personal property, a digital good, or

21  a service.

22         (c)  This section does not apply to the sales or use

23  taxes levied on the following:

24         1.  The retail sale or transfer of boats, modular

25  homes, manufactured homes, or mobile homes;

26         2.  The retail sale, excluding lease or rental, of

27  motor vehicles or aircraft that do not qualify as

28  transportation equipment, as defined in paragraph (g). The

29  lease or rental of these items shall be deemed to have

30  occurred in accordance with paragraph (f).

31

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  1         3.  The retail sale of tangible personal property by a

  2  florist.

  3

  4  Such retail sales are deemed to take place in accordance with

  5  s. 212.054(5).

  6         (d)  The retail sale of a product, excluding a lease or

  7  rental, shall be deemed to take place:

  8         1.  When the product is received by the purchaser at a

  9  business location of the seller, the sale is deemed to take

10  place at that business location.

11         2.  When the product is not received by the purchaser

12  at a business location of the seller, the sale is deemed to

13  take place at the location where receipt by the purchaser, or

14  the purchaser's donee, designated as such by the purchaser,

15  occurs, including the location indicated by instructions for

16  delivery to the purchaser or donee, known to the seller.

17         3.  When subparagraphs 1. and 2. do not apply, the sale

18  is deemed to take place at the location indicated by an

19  address for the purchaser which is available from the business

20  records of the seller which are maintained in the ordinary

21  course of the seller's business when use of this address does

22  not constitute bad faith.

23         4.  When subparagraphs 1., 2., and 3. do not apply, the

24  sale is deemed to take place at the location indicated by an

25  address for the purchaser obtained during the consummation of

26  the sale, including the address of a purchaser's payment

27  instrument, if no other address is available, when use of this

28  address does not constitute bad faith.

29         5.  When subparagraphs 1., 2., 3., and 4. do not apply,

30  including when the seller is without sufficient information to

31  apply the previous paragraphs, the address from which tangible

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  1  personal property was shipped, from which the digital good or

  2  the computer software delivered electronically was first

  3  available for transmission by the seller, or from which the

  4  service was provided, disregarding any location that merely

  5  provided the digital transfer of the product sold, shall

  6  determine where the retail sale is deemed to take place.

  7         (e)  The lease or rental of tangible personal property,

  8  other than property identified in paragraphs (f) and (g),

  9  shall be deemed to have occurred as follows:

10         1.  For a lease or rental that requires recurring

11  periodic payments, the first periodic payment is deemed to

12  take place in accordance with paragraph (d), notwithstanding

13  the exclusion of lease or rental in paragraph (d). Subsequent

14  periodic payments are deemed to have occurred at the primary

15  property location for each period covered by the payment. The

16  primary property location is determined by an address for the

17  property provided by the lessee which is available to the

18  lessor from its records maintained in the ordinary course of

19  business, when use of this address does not constitute bad

20  faith. The property location shall not be altered by

21  intermittent use of the property at different locations, such

22  as use of business property that accompanies employees on

23  business trips and service calls.

24         2.  For a lease or rental that does not require

25  recurring periodic payments, the payment is deemed to take

26  place in accordance with the provisions of paragraph (d),

27  notwithstanding the exclusion of lease or rental in paragraph

28  (d).

29         3.  This paragraph does not affect the imposition or

30  computation of sales or use tax on leases or rentals based on

31

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  1  a lump sum or accelerated basis or on the acquisition of

  2  property for lease.

  3         (f)  The lease or rental of motor vehicles or aircraft

  4  that do not qualify as transportation equipment, as defined in

  5  paragraph (g), shall be sourced as follows:

  6         1.  For a lease or rental that requires recurring

  7  periodic payments, each periodic payment is deemed to take

  8  place at the primary property location. The primary property

  9  location shall be determined by an address for the property

10  provided by the lessee which is available to the lessor from

11  its records maintained in the ordinary course of business,

12  when use of this address does not constitute bad faith. This

13  location shall not be altered by intermittent use at different

14  locations.

15         2.  For a lease or rental that does not require

16  recurring periodic payments, the payment is deemed to take

17  place in accordance with paragraph (d), notwithstanding the

18  exclusion of lease or rental in paragraph (d).

19         3.  This paragraph does not affect the imposition or

20  computation of sales or use tax on leases or rentals based on

21  a lump sum or accelerated basis or on the acquisition of

22  property for lease.

23         (g)  The retail sale, including lease or rental, of

24  transportation equipment shall be deemed to take place in

25  accordance with paragraph (d), notwithstanding the exclusion

26  of lease or rental in paragraph (d). The term "transportation

27  equipment" means:

28         1.  Locomotives and railcars that are used for the

29  carriage of persons or property in interstate commerce;

30         2.  Trucks and truck tractors with a Gross Vehicle

31  Weight Rating (GVWR) of 10,001 pounds or greater, trailers,

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  1  semitrailers, or passenger buses that are registered through

  2  the International Registration Plan and operated under

  3  authority of a carrier authorized and certificated by the

  4  United States Department of Transportation or another federal

  5  authority to engage in the carriage of persons or property in

  6  interstate commerce;

  7         3.  Aircraft that are operated by air carriers

  8  authorized and certificated by the United States Department of

  9  Transportation or another federal or a foreign authority to

10  engage in the carriage of persons or property in interstate or

11  foreign commerce; or

12         4.  Containers designed for use on and component parts

13  attached or secured on the items set forth in subparagraphs 1.

14  through 3.

15         (4)(3)(a)  Except as provided in paragraphs (a) and

16  paragraph (b), every dealer making retail sales, whether

17  within or outside the state, of tangible personal property for

18  distribution, storage, or use or other consumption, in this

19  state, shall, at the time of making sales, collect the tax

20  imposed by this chapter from the purchaser.

21         (a)  Notwithstanding subsection (3), a business

22  purchaser that is not a holder of a direct-pay permit and that

23  knows at the time of purchase of a digital good, computer

24  software delivered electronically, or a service that the

25  digital good, computer software delivered electronically, or

26  service will be concurrently available for use in more than

27  one jurisdiction shall deliver to the dealer a multiple points

28  of use exemption form (MPU exemption form) at the time of

29  purchase.

30         1.  Upon receipt of the MPU exemption form, the seller

31  is relieved of all obligation to collect, pay, or remit the

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  1  applicable tax, and the purchaser shall be obligated to

  2  collect, pay, or remit the applicable tax on a direct-pay

  3  basis.

  4         2.  A purchaser delivering the MPU exemption form may

  5  use any reasonable, but consistent and uniform, method of

  6  apportionment that is supported by the purchaser's business

  7  records as they exist at the time of the consummation of the

  8  sale.

  9         3.  The MPU exemption form will remain in effect for

10  all future sales by the seller to the purchaser, except as to

11  the subsequent sale's specific apportionment that is governed

12  by the principle of subparagraph 2. and the facts existing at

13  the time of the sale, until the MPU exemption form is revoked

14  in writing.

15         4.  A holder of a direct-pay permit is not required to

16  deliver an MPU exemption form to the seller. A direct-pay

17  permitholder shall follow the provisions of subparagraph 2. in

18  apportioning the tax due on a digital good or a service that

19  will be concurrently available for use in more than one

20  jurisdiction.

21         (b)1.  Notwithstanding subsection (3), a purchaser of

22  direct mail which is not a holder of a direct-pay permit shall

23  provide to the seller in conjunction with the purchase either

24  a direct mail form or information to show the jurisdictions to

25  which the direct mail is delivered to recipients. Upon receipt

26  of the direct mail form, the seller is relieved of all

27  obligations to collect, pay, or remit the applicable tax, and

28  the purchaser is obligated to pay or remit the applicable tax

29  on a direct-pay basis. A direct mail form shall remain in

30  effect for all future sales of direct mail by the seller to

31  the purchaser until it is revoked in writing.

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  1         2.  Upon receipt of information from the purchaser

  2  showing the jurisdictions to which the direct mail is

  3  delivered to recipients, the seller shall collect the tax

  4  according to the delivery information provided by the

  5  purchaser. In the absence of bad faith, the seller is relieved

  6  of any further obligation to collect tax on any transaction

  7  where the seller has collected tax pursuant to the delivery

  8  information provided by the purchaser.

  9         3.  If the purchaser of direct mail does not have a

10  direct-pay permit and does not provide the seller with either

11  a direct mail form or delivery information as required by

12  subparagraph 1., the seller shall collect the tax according to

13  subparagraph 5. This paragraph does not limit a purchaser's

14  obligation for sales or use tax to any state to which the

15  direct mail is delivered.

16         4.  If a purchaser of direct mail provides the seller

17  with documentation of direct-pay authority, the purchaser is

18  not required to provide a direct mail form or delivery

19  information to the seller. A purchaser of printed materials

20  shall have sole responsibility for the taxes imposed by this

21  chapter on those materials when the printer of the materials

22  delivers them to the United States Postal Service for mailing

23  to persons other than the purchaser located within and outside

24  this state. Printers of materials delivered by mail to persons

25  other than the purchaser located within and outside this state

26  shall have no obligation or responsibility for the payment or

27  collection of any taxes imposed under this chapter on those

28  materials. However, printers are obligated to collect the

29  taxes imposed by this chapter on printed materials when all,

30  or substantially all, of the materials will be mailed to

31  persons located within this state. For purposes of the

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  1  printer's tax collection obligation, there is a rebuttable

  2  presumption that all materials printed at a facility are

  3  mailed to persons located within the same state as that in

  4  which the facility is located.  A certificate provided by the

  5  purchaser to the printer concerning the delivery of the

  6  printed materials for that purchase or all purchases shall be

  7  sufficient for purposes of rebutting the presumption created

  8  herein.

  9         5.2.  The Department of Revenue is authorized to adopt

10  rules and forms to implement the provisions of this paragraph.

11         Section 6.  Subsections (1) and (2) of section 212.08,

12  Florida Statutes, are amended to read:

13         212.08  Sales, rental, use, consumption, distribution,

14  and storage tax; specified exemptions.--The sale at retail,

15  the rental, the use, the consumption, the distribution, and

16  the storage to be used or consumed in this state of the

17  following are hereby specifically exempt from the tax imposed

18  by this chapter.

19         (1)  EXEMPTIONS; GENERAL GROCERIES.--

20         (a)  Food and food ingredients products for human

21  consumption are exempt from the tax imposed by this chapter.

22         (b)  For the purpose of this chapter, as used in this

23  subsection, the term "food and food ingredients products"

24  means substances, whether in liquid, concentrated, solid,

25  frozen, dried, or dehydrated form, which are sold for

26  ingestion or chewing by humans and are consumed for their

27  taste or nutritional value edible commodities, whether

28  processed, cooked, raw, canned, or in any other form, which

29  are generally regarded as food. This includes, but is not

30  limited to, all of the following:

31

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  1         1.  Cereals and cereal products, baked goods,

  2  oleomargarine, meat and meat products, fish and seafood

  3  products, frozen foods and dinners, poultry, eggs and egg

  4  products, vegetables and vegetable products, fruit and fruit

  5  products, spices, salt, sugar and sugar products, milk and

  6  dairy products, and products intended to be mixed with milk.

  7         2.  Natural fruit or vegetable juices or their

  8  concentrates or reconstituted natural concentrated fruit or

  9  vegetable juices, whether frozen or unfrozen, dehydrated,

10  powdered, granulated, sweetened or unsweetened, seasoned with

11  salt or spice, or unseasoned; coffee, coffee substitutes, or

12  cocoa; and tea, unless it is sold in a liquid form.

13         3.  Bakery products sold by bakeries, pastry shops, or

14  like establishments, if sold without eating utensils. Bakery

15  products for purposes of this subsection include bread, rolls,

16  buns, biscuits, bagels, croissants, pastries, doughnuts,

17  danish, cakes, tortes, pies, tarts, muffins, bars, cookies,

18  and tortillas that do not have eating facilities.

19         4.  Dietary supplements. The term "dietary supplements"

20  means any product, other than tobacco, intended to supplement

21  the diet that contains one or more of the following dietary

22  ingredients: a vitamin; a mineral; an herb or other botanical;

23  an amino acid; a dietary substance for use by humans to

24  supplement the diet by increasing the total dietary intake; or

25  a concentrate, metabolite, constituent, extract, or

26  combination of any ingredient described in this subparagraph

27  which is intended for ingestion in tablet, capsule, powder,

28  softgel, gelcap, or liquid form or, if not intended for

29  ingestion in such a form, is not represented as conventional

30  food and is not represented for use as a sole item of a meal

31  or of the diet; and which is required to be labeled as a

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  1  dietary supplement, identifiable by the "supplemental facts"

  2  box found on the label and as required pursuant to 21 C.F.R.

  3  s. 101.36.

  4         (c)  The exemption provided by this subsection does not

  5  apply:

  6         1.  When the food products are sold as meals for

  7  consumption on or off the premises of the dealer.

  8         2.  When the food products are furnished, prepared, or

  9  served for consumption at tables, chairs, or counters or from

10  trays, glasses, dishes, or other tableware, whether provided

11  by the dealer or by a person with whom the dealer contracts to

12  furnish, prepare, or serve food products to others.

13         3.  When the food products are ordinarily sold for

14  immediate consumption on the seller's premises or near a

15  location at which parking facilities are provided primarily

16  for the use of patrons in consuming the products purchased at

17  the location, even though such products are sold on a "take

18  out" or "to go" order and are actually packaged or wrapped and

19  taken from the premises of the dealer.

20         4.  To sandwiches sold ready for immediate consumption

21  on or off the seller's premises.

22         5.  When the food products are sold ready for immediate

23  consumption within a place, the entrance to which is subject

24  to an admission charge.

25         1.6.  When the food and food ingredients products are

26  sold as hot prepared food products.

27         2.7.  To soft drinks, which include, but are not

28  limited to, any nonalcoholic beverage, any preparation or

29  beverage commonly referred to as a "soft drink," or any

30  noncarbonated drink made from milk derivatives or tea, when

31  sold in cans or similar containers. The term "soft drinks"

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  1  means nonalcoholic beverages that contain natural or

  2  artificial sweeteners. Soft drinks do not include beverages

  3  that contain milk or milk products, soy, rice, or similar milk

  4  substitutes, or greater than 50 percent of vegetable or fruit

  5  juice by volume.

  6         3.8.  To ice cream, frozen yogurt, and similar frozen

  7  dairy or nondairy products in cones, small cups, or pints,

  8  popsicles, frozen fruit bars, or other novelty items, whether

  9  or not sold separately.

10         9.  To food prepared, whether on or off the premises,

11  and sold for immediate consumption. This does not apply to

12  food prepared off the premises and sold in the original sealed

13  container, or the slicing of products into smaller portions.

14         4.10.  When the food and food ingredients products are

15  sold through a vending machine, pushcart, motor vehicle, or

16  any other form of vehicle.

17         5.11.  To candy and any similar product regarded as

18  candy or confection, based on its normal use, as indicated on

19  the label or advertising thereof. The term "candy" means a

20  preparation of sugar, honey, or other natural or artificial

21  sweeteners in combination with chocolate, fruits, nuts, or

22  other ingredients or flavorings in the form of bars, drops, or

23  pieces. Candy does not include any preparation that contains

24  flour and requires no refrigeration.

25         12.  To bakery products sold by bakeries, pastry shops,

26  or like establishments that have eating facilities, except

27  when sold for consumption off the seller's premises.

28         13.  When food products are served, prepared, or sold

29  in or by restaurants, lunch counters, cafeterias, hotels,

30  taverns, or other like places of business.

31         6.  To tobacco.

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  1         (d)  As used in this subsection, the term:

  2         1.  "For consumption off the seller's premises" means

  3  that the food or drink is intended by the customer to be

  4  consumed at a place away from the dealer's premises.

  5         2.  "For consumption on the seller's premises" means

  6  that the food or drink sold may be immediately consumed on the

  7  premises where the dealer conducts his or her business. In

  8  determining whether an item of food is sold for immediate

  9  consumption, there shall be considered the customary

10  consumption practices prevailing at the selling facility.

11         3.  "Premises" shall be construed broadly, and means,

12  but is not limited to, the lobby, aisle, or auditorium of a

13  theater; the seating, aisle, or parking area of an arena,

14  rink, or stadium; or the parking area of a drive-in or outdoor

15  theater. The premises of a caterer with respect to catered

16  meals or beverages shall be the place where such meals or

17  beverages are served.

18         1.4.  "Hot Prepared food products" means food sold in a

19  heated state or heated by the seller; two or more food

20  ingredients mixed or combined by the seller for sale as a

21  single item; or food sold with eating utensils provided by the

22  seller, including plates, knives, forks, spoons, glasses,

23  cups, napkins, or straws. A plate does not include a container

24  or packaging used to transport the food. Prepared food does

25  not include food that is only cut, repackaged, or pasteurized

26  by the seller and eggs, fish, meat, poultry, and foods

27  containing these raw animal foods requiring cooking by the

28  consumer as recommended by the Food and Drug Administration in

29  chapter 3, part 401.11 of its food code so as to prevent food

30  borne illnesses. "Prepared food" for purposes of this

31  subsection includes sandwiches sold for immediate consumption,

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  1  and those products, items, or components which have been

  2  prepared for sale in a heated condition and which are sold at

  3  any temperature that is higher than the air temperature of the

  4  room or place where they are sold. "Hot prepared food

  5  products," for the purposes of this subsection, includes a

  6  combination of hot and cold food items or components where a

  7  single price has been established for the combination and the

  8  food products are sold in such combination, such as a hot

  9  meal, a hot specialty dish or serving, or a hot sandwich or

10  hot pizza, or food sold in an unheated state by weight or

11  volume as a single item, including cold components or side

12  items.

13         (e)1.  Food or drinks not exempt under paragraphs (a),

14  (b), (c), and (d) shall be exempt, notwithstanding those

15  paragraphs, when purchased with food coupons or Special

16  Supplemental Food Program for Women, Infants, and Children

17  vouchers issued under authority of federal law.

18         2.  This paragraph is effective only while federal law

19  prohibits a state's participation in the federal food coupon

20  program or Special Supplemental Food Program for Women,

21  Infants, and Children if there is an official determination

22  that state or local sales taxes are collected within that

23  state on purchases of food or drinks with such coupons.

24         3.  This paragraph shall not apply to any food or

25  drinks on which federal law shall permit sales taxes without

26  penalty, such as termination of the state's participation.

27         (f)  "Dietary supplements" that are sold as prepared

28  food are not exempt.

29         (2)  EXEMPTIONS; MEDICAL.--

30         (a)  There shall be exempt from the tax imposed by this

31  chapter any medical products and supplies or medicine

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  1  dispensed according to an individual prescription or

  2  prescriptions written by a prescriber authorized by law to

  3  prescribe medicinal drugs; hypodermic needles; hypodermic

  4  syringes; chemical compounds and test kits used for the

  5  diagnosis or treatment of human disease, illness, or injury;

  6  and common household remedies recommended and generally sold

  7  for internal or external use in the cure, mitigation,

  8  treatment, or prevention of illness or disease in human

  9  beings, but not including grooming and hygiene products

10  cosmetics or toilet articles, notwithstanding the presence of

11  medicinal ingredients therein, according to a list prescribed

12  and approved by the Department of Health, which list shall be

13  certified to the Department of Revenue from time to time and

14  included in the rules promulgated by the Department of

15  Revenue. There shall also be exempt from the tax imposed by

16  this chapter artificial eyes and limbs; orthopedic shoes;

17  prescription eyeglasses and items incidental thereto or which

18  become a part thereof; dentures; hearing aids; crutches;

19  durable medical equipment; mobility enhancing equipment;

20  prosthetic devices and orthopedic appliances; and funerals. In

21  addition, any items intended for one-time use which transfer

22  essential optical characteristics to contact lenses shall be

23  exempt from the tax imposed by this chapter; however, this

24  exemption shall apply only after $100,000 of the tax imposed

25  by this chapter on such items has been paid in any calendar

26  year by a taxpayer who claims the exemption in such year.

27  Funeral directors shall pay tax on all tangible personal

28  property used by them in their business.

29         (b)  For the purposes of this subsection, the term:

30         1.  "Drug" means a compound, substance, or preparation,

31  and any component of a compound, substance, or preparation,

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  1  other than food and food ingredients, dietary supplements, and

  2  alcoholic beverages, which is:

  3         a.  Recognized in the official United States

  4  Pharmacopoeia, official Homeopathic Pharmacopoeia of the

  5  United States, or official National Formulary, or the

  6  supplement to any of them;

  7         b.  Intended for use in the diagnosis, cure,

  8  mitigation, treatment, or prevention of disease; or

  9         c.  Intended to affect the structure or any function of

10  the body.

11         2.  "Durable medical equipment" means equipment,

12  including repair and replacement parts therefor, but the term

13  does not include mobility-enhancing equipment, which can

14  withstand repeated use, is primarily and customarily used to

15  serve a medical purpose, generally is not useful to a person

16  in the absence of illness or injury, and is not worn on or in

17  the body.

18         3.  "Mobility-enhancing equipment" means equipment,

19  including repair and replacement parts therefor, but the term

20  does not include durable medical equipment, which:

21         a.  Is primarily and customarily used to provide or

22  increase the ability to move from one place to another and

23  which is appropriate for use either in a home or a motor

24  vehicle;

25         b.  Is not generally used by persons with normal

26  mobility; and

27         c.  Does not include any motor vehicle or any equipment

28  on a motor vehicle normally provided by a motor vehicle

29  manufacturer.

30

31

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  1         4.  "Prosthetic device" means a replacement,

  2  corrective, or supportive device, including repair or

  3  replacement parts therefor, worn on or in the body to:

  4         a.  Artificially replace a missing portion of the body;

  5         b.  Prevent or correct physical deformity or

  6  malfunction; or

  7         c.  Support a weak or deformed portion of the body.

  8         5.  "Grooming and hygiene products" are soaps and

  9  cleaning solutions, shampoo, toothpaste, mouthwash,

10  antiperspirants, and suntan lotions and screens, regardless of

11  whether the items meet the definition of over-the-counter

12  drugs.

13         6.  "Over-the-counter drug" means a drug the packaging

14  for which contains a label that identifies the product as a

15  drug as required by 21 C.F.R. s. 201.66. The over-the-counter

16  drug label includes a "drug facts" panel or a statement of the

17  active ingredients with a list of those ingredients contained

18  in the compound, substance, or preparation. "Prosthetic and

19  orthopedic appliances" means any apparatus, instrument,

20  device, or equipment used to replace or substitute for any

21  missing part of the body, to alleviate the malfunction of any

22  part of the body, or to assist any disabled person in leading

23  a normal life by facilitating such person's mobility.  Such

24  apparatus, instrument, device, or equipment shall be exempted

25  according to an individual prescription or prescriptions

26  written by a physician licensed under chapter 458, chapter

27  459, chapter 460, chapter 461, or chapter 466, or according to

28  a list prescribed and approved by the Department of Health,

29  which list shall be certified to the Department of Revenue

30  from time to time and included in the rules promulgated by the

31  Department of Revenue.

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  1         2.  "Cosmetics" means articles intended to be rubbed,

  2  poured, sprinkled, or sprayed on, introduced into, or

  3  otherwise applied to the human body for cleansing,

  4  beautifying, promoting attractiveness, or altering the

  5  appearance and also means articles intended for use as a

  6  compound of any such articles, including, but not limited to,

  7  cold creams, suntan lotions, makeup, and body lotions.

  8         3.  "Toilet articles" means any article advertised or

  9  held out for sale for grooming purposes and those articles

10  that are customarily used for grooming purposes, regardless of

11  the name by which they may be known, including, but not

12  limited to, soap, toothpaste, hair spray, shaving products,

13  colognes, perfumes, shampoo, deodorant, and mouthwash.

14         4.  "Prescription" means an order, formula, or recipe

15  issued in any form of oral, written, electronic, or other

16  means of transmission by a duly licensed practitioner

17  authorized by the laws of this state. includes any order for

18  drugs or medicinal supplies written or transmitted by any

19  means of communication by a duly licensed practitioner

20  authorized by the laws of the state to prescribe such drugs or

21  medicinal supplies and intended to be dispensed by a

22  pharmacist. The term also includes an orally transmitted order

23  by the lawfully designated agent of such practitioner. The

24  term also includes an order written or transmitted by a

25  practitioner licensed to practice in a jurisdiction other than

26  this state, but only if the pharmacist called upon to dispense

27  such order determines, in the exercise of his or her

28  professional judgment, that the order is valid and necessary

29  for the treatment of a chronic or recurrent illness. The term

30  also includes a pharmacist's order for a product selected from

31  the formulary created pursuant to s. 465.186. A prescription

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  1  may be retained in written form, or the pharmacist may cause

  2  it to be recorded in a data processing system, provided that

  3  such order can be produced in printed form upon lawful

  4  request.

  5         (c)  Such durable medical equipment, mobility enhancing

  6  equipment, or prosthetic device shall be exempted according to

  7  an individual prescription or prescriptions written by a

  8  physician licensed under chapter 458, chapter 459, chapter

  9  460, chapter 461, or chapter 466, or according to a list

10  prescribed and approved by the Department of Health, which

11  list shall be certified to the Department of Revenue from time

12  to time and included in the rules adopted by the Department of

13  Revenue.

14         (d)(c)  Chlorine shall not be exempt from the tax

15  imposed by this chapter when used for the treatment of water

16  in swimming pools.

17         (e)(d)  Lithotripters are exempt.

18         (f)(e)  Human organs are exempt.

19         (g)(f)  Sales of drugs to or by physicians, dentists,

20  veterinarians, and hospitals in connection with medical

21  treatment are exempt.

22         (h)(g)  Medical products and supplies used in the cure,

23  mitigation, alleviation, prevention, or treatment of injury,

24  disease, or incapacity which are temporarily or permanently

25  incorporated into a patient or client by a practitioner of the

26  healing arts licensed in the state are exempt.

27         (i)(h)  The purchase by a veterinarian of commonly

28  recognized substances possessing curative or remedial

29  properties which are ordered and dispensed as treatment for a

30  diagnosed health disorder by or on the prescription of a duly

31  licensed veterinarian, and which are applied to or consumed by

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  1  animals for alleviation of pain or the cure or prevention of

  2  sickness, disease, or suffering are exempt. Also exempt are

  3  the purchase by a veterinarian of antiseptics, absorbent

  4  cotton, gauze for bandages, lotions, vitamins, and worm

  5  remedies.

  6         (j)(i)  X-ray opaques, also known as opaque drugs and

  7  radiopaque, such as the various opaque dyes and barium

  8  sulphate, when used in connection with medical X rays for

  9  treatment of bodies of humans and animals, are exempt.

10         (k)(j)  Parts, special attachments, special lettering,

11  and other like items that are added to or attached to tangible

12  personal property so that a handicapped person can use them

13  are exempt when such items are purchased by a person pursuant

14  to an individual prescription.

15         (l)(k)  This subsection shall be strictly construed and

16  enforced.

17         Section 7.  Section 212.095, Florida Statutes, is

18  amended to read:

19         212.095  Refunds.--

20         (1)  No exemption granted on a refund basis pursuant to

21  this chapter is authorized except as provided in this section.

22         (2)  Notwithstanding any other law, a purchaser seeking

23  a refund of or credit for a tax collected by a dealer under

24  this chapter must, within 3 years following collection of the

25  tax from the purchaser, submit a written request for the

26  refund or credit to the dealer in accordance with this

27  section. A request shall not be granted unless the amount

28  claimed was collected from the purchaser and was not due to

29  the state or to any local taxing jurisdiction.

30         (a)  A request for a refund or credit may be submitted

31  under this section if:

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  1         1.  The dealer charged and collected the tax with

  2  respect to a transaction or charge that was not subject to the

  3  taxes imposed by this chapter or applied a tax rate in excess

  4  of the lawful rate.

  5         2.  The purchaser or the transaction was exempt or

  6  immune from such taxes.

  7         3.  The purchaser was assigned to the incorrect local

  8  taxing jurisdiction for purposes of the taxes authorized in

  9  ss. 212.054 and 212.055 in respect to a transaction with a

10  seller who is registered under the Streamlined Sales and Use

11  Tax Agreement pursuant to s. 213.256.

12         4.  The purchaser paid the tax in error.

13         (b)  A purchaser's request for a refund or credit must

14  be signed by the purchaser and is complete for purposes of

15  this section and the limitation period if it states the

16  purchaser's name, mailing address, account number, the tax

17  amounts claimed, the specific months during which those

18  amounts were collected, and the reason for the purchaser's

19  claim that such amounts were not due to the state or to any

20  local taxing jurisdiction. If the reason for the request is an

21  exemption or immunity or a claim that the purchaser was

22  assigned to the incorrect local taxing jurisdiction for

23  purposes of a tax imposed under ss. 212.054 and 212.055, a

24  completed request must also include any additional information

25  the department prescribes by rule to facilitate verification

26  of the purchaser's eligibility for exemption or immunity or to

27  facilitate verification of the purchaser's address. Upon

28  receipt of a completed request, the dealer shall ascertain

29  whether it collected the tax claimed from the purchaser and

30  whether the request is timely.

31

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  1         (c)  Within 30 days following receipt of a completed

  2  request, the dealer shall determine as to whether any portion

  3  of the tax was collected solely as the result of an error of

  4  the dealer or the purchaser or solely as the result of a

  5  combination of errors of the dealer and the purchaser. The

  6  dealer shall refund any such amount or credit the purchaser's

  7  account for such amount within 45 days following such

  8  determination.

  9         (d)  With respect to all amounts timely claimed which

10  the dealer collected from the purchaser and which the dealer

11  has not determined to be subject to refund or credit pursuant

12  to paragraph (c), the dealer shall, within 30 days following

13  receipt of the purchaser's completed request for refund or

14  credit, provide a copy of the request to the department. If

15  the reason for the purchaser's request is described in

16  subparagraph (a)1. or subparagraph (a)3., the dealer shall

17  contemporaneously furnish to the department an identification

18  of the charges included in the taxable measure and the tax

19  rates applied to the charges or a written identification of

20  each local jurisdiction to which the purchaser was assigned

21  and the amounts collected from the purchaser and reported for

22  each such jurisdiction, as the case may be. If a purchaser's

23  request submitted to the department under this section sets

24  forth another reason for claiming a refund or credit, the

25  dealer shall furnish to the department information to

26  facilitate the department's evaluation of the request.

27         (e)  Within 90 days following receipt of the

28  purchaser's request from the dealer, the department shall

29  determine whether the tax was correctly applied and notify the

30  dealer in writing of its determination. If the department

31  determines that the tax was incorrectly applied, its

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  1  notification to the dealer must inform the dealer how the tax

  2  should have been applied, including, in the case of an

  3  incorrect assignment of the purchaser to a local taxing

  4  jurisdiction, an identification of the correct local taxing

  5  jurisdiction and the applicable rates of tax levied by the

  6  local jurisdiction. The department's notification must also

  7  inform the dealer of any portion of the amount claimed which

  8  was not due to the state or to any local taxing jurisdiction

  9  and approve the refund or credit of such amount to the

10  purchaser. Within 45 days following receipt of notification

11  from the department, the dealer shall issue a refund or credit

12  the purchaser's account for any such amount. The dealer's

13  obligation to issue a refund or credit the purchaser's account

14  is limited to amounts approved in accordance with this

15  section.

16         (f)  The dealer shall issue a written response within

17  60 days following the dealer's receipt of the request advising

18  the purchaser of the disposition of the purchaser's request.

19  The response must specify any portion of the tax claimed which

20  is being refunded or credited to the purchaser's account and

21  the reason for denial of any portion of the request. If the

22  dealer has not determined that the request is subject to

23  refund or credit pursuant to paragraph (c), the response must

24  state that the dealer has submitted a copy of the request to

25  the department. The request may be denied if the request was

26  untimely or incomplete, the dealer did not collect the tax

27  claimed, the purchaser previously received a refund of or

28  credit for the same tax, the tax collected was due, or the

29  department failed to furnish the notification required by

30  paragraph (e).

31

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  1         (g)  The dealer may deduct from any refund or credit

  2  under this section any amount owed by the purchaser to the

  3  dealer which is delinquent.

  4         (3)  This section provides the sole and exclusive

  5  procedure and remedy for a purchaser who claims that a dealer

  6  has collected taxes imposed or administered under this chapter

  7  which were not due. An action that arises as a result of the

  8  claimed collection of taxes that were not due may not be

  9  commenced or maintained by or on behalf of a purchaser against

10  a dealer, a municipality, a county, or the state unless the

11  purchaser pleads and proves that the purchaser has exhausted

12  the procedures in subsection (2) and that the defendant has

13  failed to comply with subsection (2). However, no

14  determination by a dealer under paragraph (2)(c) shall be

15  deemed a failure to comply with subsection (2) if the dealer

16  has complied with the obligations imposed on the dealer by

17  paragraphs (2)(d), (e), and (f). In any such action, it is a

18  complete defense that the dealer, a municipality, a county, or

19  the state has refunded the taxes claimed or credited the

20  purchaser's account. In such an action against a seller, it is

21  also a complete defense that, in collecting the tax, the

22  seller used an electronic database provided by the department

23  set forth in s. 202.22(2) for assigning the purchaser to a

24  local taxing jurisdiction. Such action is barred unless it is

25  commenced within 180 days following the date of the dealer's

26  written response under paragraph (2)(f), or within 1 year

27  following submission of the purchaser's request to the dealer

28  if the dealer failed to issue a timely written response. The

29  relief available to a purchaser as a result of collection of

30  taxes imposed under chapter 212 that were not due is limited

31  to a refund of or credit for such taxes.

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  1         (4)  A dealer who remitted a tax amount to the

  2  department for which the dealer subsequently issued a refund

  3  or credit to the purchaser pursuant to this section, and a

  4  dealer who has otherwise remitted to the department a tax

  5  amount with respect to taxes which was not due under this

  6  chapter, is entitled to a refund or credit of such amount from

  7  the department. The dealer may apply for a refund within the

  8  period prescribed in s. 215.26 or may take a credit against a

  9  tax remittance otherwise required under this chapter within 3

10  years after the date that the amount for which credit is

11  claimed was remitted to the department, or within 60 days

12  following such provider's issuance of a refund or credit to

13  the purchaser for such amount, whichever occurs later. In

14  addition, s. 213.34 applies to the offset of overpayments

15  against deficiencies in audits of dealers and purchasers.

16         (5)  A seller who takes a credit on a subsequent

17  return, as provided in subsection (4), for a tax imposed

18  pursuant to ss. 212.054 and 212.055 which has been collected

19  and remitted by the seller must indicate such credit in the

20  portion of the Streamlined Sales and Use Tax return applicable

21  to the local taxing jurisdiction for which the tax was

22  originally reported.

23         (6)  A dealer who has collected and remitted amounts

24  that were not due, as determined by the department under

25  paragraph (2)(e), who has issued a refund or credit to the

26  purchaser for such amounts, and who takes a credit or receives

27  a refund from the department for such amounts as provided in

28  subsection (4) is not subject to assessment for any of the tax

29  that was refunded or credited or for any interest or penalty

30  with respect to the tax. In addition, a seller who modifies

31  his or her tax compliance practices to conform to a department

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  1  determination under paragraph (2)(e) is not subject to

  2  assessment as a result of such modification, absent a

  3  subsequent change in law or update to a database pursuant to

  4  s. 202.22(2).

  5         (7)  A purchaser who seeks a refund of taxes imposed

  6  under this chapter, that the purchaser paid directly to the

  7  department must apply to the department for such refund in

  8  accordance with s. 215.26 and may not apply to the dealer.

  9         (8)(2)(a)  A person who seeks a refund of taxes imposed

10  under this chapter which the person paid directly to the

11  department or a dealer who seeks a refund from the department

12  pursuant to subsection (4) No person may not secure a refund

13  under this chapter unless such person files is the holder of

14  an unrevoked refund permit issued by the department before the

15  purchase for which a refund is sought, which permit shall be

16  numbered and issued annually.

17         (b)  To procure a permit, a person must file with the

18  department an application, on forms furnished by the

19  department, stating that he or she is entitled to a refund

20  according to the provisions of this chapter and that he or she

21  intends to file an application for refund for the current

22  calendar year, and must furnish the department such other

23  information as the department requests.

24         (c)  No person may in any event be allowed a refund

25  unless he or she has filed the application provided for in

26  paragraph (b) with the department. A permit shall be effective

27  on the date issued by the department.

28         (d)  If an applicant for a refund permit has violated

29  any provision of this section or any regulation pursuant

30  hereto, or has been convicted of bribery, theft, or false

31  swearing within the period of 5 years preceding the

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  1  application, or if the department has evidence of the

  2  financial irresponsibility of the applicant, the department

  3  may require the applicant to execute a corporate surety bond

  4  of $1,000 to be approved by the department, conditioned upon

  5  the payment of all taxes, penalties, and fines for which such

  6  applicant may become liable under this chapter.

  7         (3)(a)  When a sale is made to a person who claims to

  8  be entitled to a refund under this section, the seller shall

  9  make out a sales invoice, which shall contain the following

10  information:

11         1.  The name and business address of the purchaser.

12         2.  A description of the item or services sold.

13         3.  The date on which the purchase was made.

14         4.  The price and amount of tax paid for the item or

15  services.

16         5.  The name and place of business of the seller at

17  which the sale was made.

18         6.  The refund permit number of the purchaser.

19         (b)  The sales invoice shall be retained by the

20  purchaser for attachment to his or her application for a

21  refund, as a part thereof. No refund will be allowed unless

22  the seller has executed such an invoice and unless proof of

23  payment of the taxes for which the refund is claimed is

24  attached.  The department may refuse to grant a refund if the

25  invoice is incomplete and fails to contain the full

26  information required in this subsection.

27         (c)  No person may execute a sales invoice, as

28  described in paragraph (a), except a dealer duly registered

29  pursuant to this chapter, or an authorized agent thereof.

30         (9)(4)(a)  No refund may be authorized unless a sworn

31  application therefor containing the information required in

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  1  this section is filed with the department not later than 30

  2  days immediately following the quarter for which the refund is

  3  claimed.  When a claim is filed after such 30 days and a

  4  justified excuse for late filing is presented to the

  5  department and the last preceding claim was filed on time,

  6  such late filing may be accepted through 60 days following the

  7  quarter.  No refund will be authorized unless the amount due

  8  is for $5 or more in any quarter and unless application is

  9  made upon forms prescribed by the department.

10         (b)  Claims shall be filed and paid for each calendar

11  quarter.  The department shall deduct a fee of $2 for each

12  claim, which fee shall be deposited in the General Revenue

13  Fund.

14         (c)  Refund application forms shall include at a

15  minimum the following information:

16         1.  The name and address of the person claiming the

17  refund.

18         2.  The refund permit number of such person.

19         2.3.  The location at which the items or services for

20  which a refund is claimed are used.

21         3.4.  A description of each such item or service and

22  the purpose for which such item or service was acquired.

23         4.5.  Copies of the sales invoices of items or services

24  for which a refund is being claimed.

25         (10)(5)  The right to receive any refund under the

26  provisions of this section is not assignable, except to the

27  executor or administrator, or to the receiver, trustee in

28  bankruptcy, or assignee in an insolvency proceeding, of the

29  person entitled to the refund.

30         (11)(6)(a)  Each registered dealer shall, in accordance

31  with the requirements of the department, keep at his or her

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  1  principal place of business in this state or at the location

  2  where the sale is made a complete record or duplicate sales

  3  tickets of all items or services sold by the registered dealer

  4  for which a refund provided in this section may be claimed,

  5  which records shall contain:

  6         1.  The name and business address of the purchaser;

  7         2.  A description of the item or services sold;

  8         3.  The date on which the purchase was made;

  9         4.  The price and amount of tax paid for the item or

10  services;

11         5.  The name and place of business of the seller at

12  which the sale was made; and

13         6.  The refund permit number of the purchaser. the

14  information required in paragraph (3)(a).

15         (b)  Every person who seeks a refund of taxes imposed

16  under this chapter to whom a refund permit has been issued

17  under this section shall, in accordance with the requirements

18  of the department, keep at his or her residence or principal

19  place of business in this state a record of each purchase for

20  which a refund is claimed, including the information required

21  in subsection paragraph (11) (3)(a).

22         (c)  The records required to be kept under this

23  subsection shall at all reasonable hours be subject to audit

24  or inspection by the department or by any person duly

25  authorized by it.  Such records shall be preserved and may not

26  be destroyed until 3 years after the date the item to which

27  they relate was sold or purchased.

28         (d)  The department shall keep a permanent record of

29  the amount of refund claimed and paid to each claimant.  Such

30  records shall be open to public inspection.

31

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  1         (12)(7)  Agents of the department are authorized to go

  2  upon the premises of any refund permitholder, or duly

  3  authorized agent thereof, to make an inspection to ascertain

  4  any matter connected with the operation of this section or the

  5  enforcement hereof. However, no agent may enter the dwelling

  6  of any person without the consent of the occupant or authority

  7  from a court of competent jurisdiction.

  8         (13)(8)  If any taxes are refunded erroneously, the

  9  department shall advise the payee by registered mail of the

10  erroneous refund.  If the payee fails to reimburse the state

11  within 15 days after the receipt of the letter, an action may

12  be instituted by the department against such payee in the

13  circuit court, and the department shall recover from the payee

14  the amount of the erroneous refund plus a penalty of 25

15  percent.

16         (14)(9)  No person shall:

17         (a)  Knowingly make a false or fraudulent statement in

18  an application for a refund permit or in an application for a

19  refund of any taxes under this section;

20         (b)  Fraudulently obtain a refund of such taxes; or

21         (c)  Knowingly aid or assist in making any such false

22  or fraudulent statement or claim.

23         (10)  The refund permit of any person who violates any

24  provision of this section shall be revoked by the department

25  and may not be reissued until 2 years have elapsed from the

26  date of such revocation.  The refund permit of any person who

27  violates any other provision of this chapter may be suspended

28  by the department for any period, in its discretion, not

29  exceeding 6 months.

30

31

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  1         (15)(11)  Refund permits and refund application forms

  2  shall include instructions for dealers and purchasers as to

  3  the relevant requirements of this section.

  4         Section 8.  Subsection (3) of section 212.17, Florida

  5  Statutes, is amended to read:

  6         212.17  Credits for returned goods, rentals, or

  7  admissions; goods acquired for dealer's own use and

  8  subsequently resold; additional powers of department.--

  9         (3)  A dealer who has paid the tax imposed by this

10  chapter on tangible personal property or services may take a

11  credit or obtain a refund for any tax paid by the dealer on

12  the unpaid balance due on worthless accounts within 12 months

13  following the month in which the bad debt has been charged off

14  for federal income tax purposes. A dealer who has paid the tax

15  imposed by this chapter on tangible personal property or

16  services and who is not required to file federal income tax

17  returns may take a credit or obtain a refund for any tax paid

18  by the dealer on the unpaid balance due on worthless accounts

19  within 12 months following the month in which the bad debt is

20  written off as uncollectible in the dealer's books and records

21  and would be eligible for a bad debt deduction for federal

22  income tax purposes if the dealer was required to file a

23  federal income tax return.

24         (a)  A dealer that is taking a credit or obtaining a

25  refund on worthless accounts shall base the bad debt recovery

26  calculation in accordance with 26 U.S.C. s. 166.

27         (b)  Notwithstanding paragraph (a), the amount

28  calculated pursuant to 26 U.S.C. s. 166 shall be adjusted to

29  exclude financing charges or interest; sales or use taxes

30  charged on the purchase price; uncollectible amounts on

31  property that remain in the possession of the seller until the

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  1  full purchase price is paid; expenses incurred in attempting

  2  to collect any debt; and repossessed property.

  3         (c)  When the amount of bad debt exceeds the amount of

  4  taxable sales for the period during which the bad debt is

  5  written off, a refund claim may be filed in accordance with

  6  the timing provisions of s. 215.26(2), except that the statute

  7  of limitations for filing the refund claim shall be measured

  8  from the due date of the return on which the bad debt could

  9  first be claimed.

10         (d)  If any accounts so charged off for which a credit

11  or refund has been obtained are thereafter in whole or in part

12  paid to the dealer, the amount so paid shall be included in

13  the first return filed after such collection and the tax paid

14  accordingly.

15         (e)  Where filing responsibilities have been assumed by

16  a certified service provider, the certified service provider

17  shall claim, on behalf of the seller, any bad debt allowance

18  provided by this section. The certified service provider must

19  credit or refund to the seller the full amount of any bad debt

20  allowance or refund received.

21         (f)  For the purposes of reporting a payment received

22  on a previously claimed bad debt, any payments made on a debt

23  or account are applied first proportionally to the taxable

24  price of the property or service and the sales tax thereon,

25  and secondly to interest, service charges, and any other

26  charges.

27         (g)  In situations in which the books and records of

28  the party claiming the bad debt allowance support an

29  allocation of the bad debts among states that are members of

30  the Streamlined Sales and Use Tax Agreement, the allocation is

31  permitted among those states.

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  1         Section 9.  Section 213.052, Florida Statutes, is

  2  created to read:

  3         213.052  Notice of state rate changes.--

  4         (1)  A sales or use tax rate change imposed under

  5  chapter 212 is effective on January 1, April 1, July 1, or

  6  October 1. The Department of Revenue shall provide notice of

  7  such rate change to all affected sellers 90 days before the

  8  effective date of the rate change.

  9         (2)  Failure of a seller to receive notice or failure

10  of a Streamlined Sales and Use Tax Agreement member state to

11  provide notice or limit the effective date of a rate change

12  shall not relieve the seller of its obligation to collect

13  sales or use tax for that member state.

14         Section 10.  Section 213.0521, Florida Statutes, is

15  created to read:

16         213.0521  Effective date of state rate changes.--The

17  effective date for services covering a period starting before

18  and ending after the statutory effective date shall be as

19  follows:

20         (1)  For a rate increase, the new rate shall apply to

21  the first billing period starting on or after the effective

22  date.

23         (2)  For a rate decrease, the new rate shall apply to

24  bills rendered on or after the effective date.

25         Section 11.  Subsection (11) is added to section

26  213.21, Florida Statutes, to read:

27         213.21  Informal conferences; compromises.--

28         (11)  A member state shall provide amnesty for

29  uncollected or unpaid sales or use tax to a seller who

30  registers to pay or to collect and remit applicable sales or

31  use tax on sales made to purchasers in the state in accordance

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  1  with the terms of the Streamlined Sales and Use Tax Agreement

  2  authorized under s. 213.256, if the seller was not so

  3  registered in that state in the 12-month period preceding the

  4  effective date of the state's participation in the agreement.

  5         (a)  The amnesty precludes assessment for uncollected

  6  or unpaid sales or use tax together with penalty or interest

  7  for sales made during the period the seller was not registered

  8  in the state, if registration occurs within 12 months after

  9  the effective date of the state's participation in the

10  agreement.

11         (b)  Amnesty similarly shall be provided by any

12  additional state that joins the agreement after the seller has

13  registered.

14         (c)  The amnesty is not available to a seller with

15  respect to any matter or matters for which the seller received

16  notice of the commencement of an audit and which audit is not

17  yet finally resolved, including any related administrative and

18  judicial processes.

19         (d)  The amnesty is not available for sales or use

20  taxes already paid or remitted to the state or to taxes

21  collected by the seller.

22         (e)  The amnesty is fully effective, absent the

23  seller's fraud or intentional misrepresentation of a material

24  fact, as long as the seller continues registration and

25  continues payment or collection and remittance of applicable

26  sales or use taxes for at least 36 months. Each member state

27  shall toll its statute of limitations applicable to asserting

28  a tax liability during this 36-month period.

29         (f)  The amnesty is applicable only to sales or use

30  taxes due from a seller in its capacity as a seller and not to

31

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  1  sales or use taxes due from a seller in its capacity as a

  2  buyer.

  3         Section 12.  Subsections (1) and (7) of section

  4  213.256, Florida Statutes, are amended, present subsections

  5  (8), (9), and (10) of that section are renumbered as

  6  subsections (11), (12), and (13), respectively, and new

  7  subsections (8), (9), (10), and (14) are added to that section

  8  to read:

  9         213.256  Simplified Sales and Use Tax Administration

10  Act.--

11         (1)  As used in this section, the term:

12         (a)  "Department" means the Department of Revenue.

13         (b)  "Agent" means a person appointed by a seller to

14  represent the seller before the member states.

15         (c)(b)  "Agreement" means the Streamlined Sales and Use

16  Tax Agreement as amended and adopted on January 27, 2001, by

17  the Executive Committee of the National Conference of State

18  Legislatures.

19         (d)(c)  "Certified automated system" means software

20  certified jointly by the states that are signatories to the

21  agreement to calculate the tax imposed by each jurisdiction on

22  a transaction, determine the amount of tax to remit to the

23  appropriate state, and maintain a record of the transaction.

24         (e)(d)  "Certified service provider" means an agent

25  certified jointly by the states that are signatories to the

26  agreement to perform all of the seller's sales tax functions

27  other than the seller's obligation to remit tax on its own

28  purchases.

29         (f)  "Model 1 seller" means a seller that has selected

30  a certified service provider as its agent to perform all the

31

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  1  seller's sales and use tax functions other than the seller's

  2  obligation to remit tax on its own purchases.

  3         (g)  "Model 2 seller" means a seller that has selected

  4  a certified automated system to perform part of its sales and

  5  use tax functions, but retains responsibility for remitting

  6  the tax.

  7         (h)  "Model 3 seller" means a seller that has sales in

  8  at least five member states, has total annual sales revenue of

  9  at least $500 million, has a proprietary system that

10  calculates the amount of tax due each jurisdiction, and has

11  entered into a performance agreement with the member states

12  which establishes a tax performance standard for the seller.

13  As used in this subsection, a seller includes an affiliated

14  group of sellers using the same proprietary system.

15         (i)(e)  "Person" means an individual, trust, estate,

16  fiduciary, partnership, limited liability company, limited

17  liability partnership, corporation, or any other legal entity.

18         (j)  "Registered under this agreement" means

19  registration by a seller with the member states under the

20  central registration system.

21         (k)(f)  "Sales tax" means the tax levied under chapter

22  212.

23         (l)(g)  "Seller" means any person making sales, leases,

24  or rentals of personal property or services.

25         (m)(h)  "State" means any state of the United States

26  and the District of Columbia.

27         (n)(i)  "Use tax" means the tax levied under chapter

28  212.

29         (7)(a)  The agreement authorized by this act binds and

30  inures only to the benefit of this state and the other member

31  states. No person, other than a member state, is an intended

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  1  beneficiary of the agreement. Any benefit to a person other

  2  than a state is established by the laws of this state and of

  3  other member states and not by the terms of the agreement.

  4         (b)  Consistent with paragraph (a), no person has any

  5  cause of action or defense under the agreement or by virtue of

  6  this state's approval of the agreement. No person may

  7  challenge, in any action brought under any provision of law,

  8  any action or inaction by any department, agency, or other

  9  instrumentality of this state, or of any political subdivision

10  of this state, on the ground that the action or inaction is

11  inconsistent with the agreement.

12         (c)  No law of this state, or the application thereof,

13  may be declared invalid as to any person or circumstance on

14  the ground that the provision or application is inconsistent

15  with the agreement.

16         (d)  The determinations pertaining to the agreement

17  authorized by this act which are made by the member states are

18  final when rendered and are not subject to any protest,

19  appeal, or review.

20         (8)  Authority to administer the agreement authorized

21  under this act shall rest with the governing board comprised

22  of representatives of each member state. Each member state may

23  appoint up to four representatives to the governing board. The

24  representatives shall be members of the executive or

25  legislative branches of the state.

26         (9)  With respect to each member state, the agreement

27  authorized by this act shall continue in full force and effect

28  until a member state withdraws its membership or is expelled.

29  A member state's withdrawal or expulsion is not effective

30  until the first day of a calendar quarter after a minimum of

31  60 days' notice. A member state shall submit notice of its

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  1  intent to withdraw from the agreement to the governing board

  2  and the chief executive of each member state's tax agency. The

  3  member state shall provide public notice of its intent to

  4  withdraw and post its notice of intent to withdraw from the

  5  agreement to the governing board and the chief executive of

  6  each member state's tax agency. The member state shall provide

  7  public notice of its intent to withdraw and post its notice of

  8  intent to withdraw on its web site. The withdrawal by or

  9  expulsion of a state does not affect the validity of the

10  agreement among other member states. A state that withdraws or

11  is expelled from the agreement remains liable for its share of

12  any financial or contractual obligations that were incurred by

13  the governing board before the effective date of that state's

14  withdrawal or expulsion. The appropriate share of any

15  financial or contractual obligation shall be determined by the

16  state and the governing board in good faith based on the

17  relative benefits received and burdens incurred by the

18  parties.

19         (10)  A member state that is found to be out of

20  compliance with the agreement authorized by this act may be

21  imposed with sanctions, which include expulsion or other

22  penalties as determined by the governing board.

23         (14)  Each member state shall annually recertify that

24  such state is in compliance with the agreement authorized

25  under this act. Each member state shall make a recertification

26  to the governing board on or before August 1 of each year

27  after the year of the state's entry. In its annual

28  recertification, the state shall include any changes in its

29  statutes, rule or regulations, or other authorities that could

30  affect its compliance with the terms of the agreement. The

31  recertification shall be signed by the executive director of

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  1  the Department of Revenue. A member state that cannot

  2  recertify its compliance with the agreement shall submit a

  3  statement of noncompliance to the governing board. The

  4  statement of noncompliance shall include any action or

  5  decision that takes such state out of compliance with the

  6  agreement and the steps it will take to return to compliance.

  7  Each member state shall post its annual recertification or

  8  statement of noncompliance on that state's web site.

  9         Section 13.  Section 213.2567, Florida Statutes, is

10  created to read:

11         213.2567  Simplified Sales and Use Tax registration,

12  certification, liability, audit.--

13         (1)  A seller that registers pursuant to the agreement

14  agrees to collect and remit sales and use taxes for all

15  taxable sales into the member states, including member states

16  joining after the seller's registration. Withdrawal or

17  revocation of a member state shall not relieve a seller of its

18  responsibility to remit taxes previously or subsequently

19  collected on behalf of the state.

20         (a)  When registering, the seller may select a model 1,

21  model 2, or model 3 method of remittance or other method

22  allowed by state law to remit the taxes collected.

23         (b)  A seller may be registered by an agent. Such

24  appointment shall be in writing and submitted to a member

25  state.

26         (2)(a)  A certified service provider is the agent of a

27  model 1 seller with whom the certified service provider has

28  contracted for the collection and remittance of sales and use

29  taxes. As the model 1 seller's agent, the certified service

30  provider is liable for sales and use tax due each member state

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  1  on all sales transactions it processes for the model 1 seller

  2  except as set out in paragraph (b).

  3         (b)  A model 1 seller is not liable to the state for

  4  sales or use tax due on transactions processed by the

  5  certified service provider unless the model 1 seller has

  6  misrepresented the type of items it sells or has committed

  7  fraud. In the absence of probably cause to believe that the

  8  model 1 seller has committed fraud or made a material

  9  misrepresentation, the model 1 seller is not subject to audit

10  on the transactions processed by the certified service

11  provider. A model 1 seller is subject to audit for

12  transactions that have not been processed by the certified

13  service provider. The member states acting jointly may perform

14  a system check of the model 1 seller and review the model 1

15  seller's procedures to determine if the certified service

16  provider's system is functioning properly and to determine the

17  extent to which the model 1 seller's transactions are being

18  processed by the certified service provider.

19         (3)  A person that provides a certified automated

20  system is responsible for the proper functioning of that

21  system and is liable to the state for underpayments of tax

22  attributable to errors in the functioning of the certified

23  automated system. A model 2 seller that uses a certified

24  automated system remains responsible and is liable to the

25  state for reporting and remitting tax.

26         (4)  A model 3 seller is liable for the failure of the

27  proprietary system to meet the performance standard.

28         (5)  The governing board may certify a person as a

29  certified service provider if the person meets all of the

30  following requirements:

31         (a)  The person uses a certified automated system;

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  1         (b)  The person integrates its certified automated

  2  system with the system of a seller for whom the person

  3  collects tax so that the tax due on a sale is determined at

  4  the time of the sale;

  5         (c)  The person agrees to remit the taxes it collects

  6  at the time and in the manner specified by the member states;

  7         (d)  The person agrees to file returns on behalf of the

  8  sellers for whom it collects tax;

  9         (e)  The person agrees to protect the privacy of tax

10  information it obtains in accordance with s. 213.053; and

11         (f)  The person enters into a contract with the member

12  states and agrees to comply with the terms of the contract.

13         (6)  The governing board may certify a software program

14  as a certified automated system if the governing board

15  determines that the program meets all of the following

16  requirements:

17         (a)  The program determines the applicable state and

18  local sales and use tax rate for a transaction in accordance

19  with s. 212.06(3) and (4);

20         (b)  The program determines whether or not an item is

21  exempt from tax;

22         (c)  The program determines the amount of tax to be

23  remitted for each taxpayer for a reporting period;

24         (d)  The program can generate reports and returns as

25  required by the governing board; and

26         (e)  The program meets any other requirement set by the

27  governing board.

28         (7)  The governing board may establish one or more

29  sales tax performance standards for model 3 sellers that meet

30  the eligibility criteria set by the governing board and that

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  1  developed a proprietary system to determine the amount of

  2  sales and use tax due on transactions.

  3         (8)  Disclosure of information necessary under this

  4  section must be pursuant to a written agreement between the

  5  executive director of the department or his or her designee

  6  and the certified service provider. The certified service

  7  provider is bound by the same requirements of confidentiality

  8  as the department. Breach of confidentiality is a misdemeanor

  9  of the first degree, punishable as provided in s. 775.082 or

10  775.083.

11         Section 14.  Paragraph (c) of subsection (2) and

12  paragraph (c) of subsection (3) of section 212.055, Florida

13  Statutes, are amended to read:

14         212.055  Discretionary sales surtaxes; legislative

15  intent; authorization and use of proceeds.--It is the

16  legislative intent that any authorization for imposition of a

17  discretionary sales surtax shall be published in the Florida

18  Statutes as a subsection of this section, irrespective of the

19  duration of the levy.  Each enactment shall specify the types

20  of counties authorized to levy; the rate or rates which may be

21  imposed; the maximum length of time the surtax may be imposed,

22  if any; the procedure which must be followed to secure voter

23  approval, if required; the purpose for which the proceeds may

24  be expended; and such other requirements as the Legislature

25  may provide.  Taxable transactions and administrative

26  procedures shall be as provided in s. 212.054.

27         (2)  LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.--

28         (c)  Pursuant to s. 212.054(6) s. 212.054(4), the

29  proceeds of the surtax levied under this subsection shall be

30  distributed to the county and the municipalities within such

31  county in which the surtax was collected, according to:

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    Florida Senate - 2003                                  SB 1776
    32-1059B-03




  1         1.  An interlocal agreement between the county

  2  governing authority and the governing bodies of the

  3  municipalities representing a majority of the county's

  4  municipal population, which agreement may include a school

  5  district with the consent of the county governing authority

  6  and the governing bodies of the municipalities representing a

  7  majority of the county's municipal population; or

  8         2.  If there is no interlocal agreement, according to

  9  the formula provided in s. 218.62.

10

11  Any change in the distribution formula must take effect on the

12  first day of any month that begins at least 60 days after

13  written notification of that change has been made to the

14  department.

15         (3)  SMALL COUNTY SURTAX.--

16         (c)  Pursuant to s. 212.054(6) s. 212.054(4), the

17  proceeds of the surtax levied under this subsection shall be

18  distributed to the county and the municipalities within the

19  county in which the surtax was collected, according to:

20         1.  An interlocal agreement between the county

21  governing authority and the governing bodies of the

22  municipalities representing a majority of the county's

23  municipal population, which agreement may include a school

24  district with the consent of the county governing authority

25  and the governing bodies of the municipalities representing a

26  majority of the county's municipal population; or

27         2.  If there is no interlocal agreement, according to

28  the formula provided in s. 218.62.

29

30  Any change in the distribution formula shall take effect on

31  the first day of any month that begins at least 60 days after

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    Florida Senate - 2003                                  SB 1776
    32-1059B-03




  1  written notification of that change has been made to the

  2  department.

  3         Section 15.  Subsection (6) of section 212.0596,

  4  Florida Statutes, is repealed.

  5         Section 16.  It is the intent of the Legislature to

  6  further amend chapter 212, Florida Statutes, to make the

  7  changes necessary to be in compliance with the provisions of

  8  the Streamlined Sales and Use Tax Agreement which take effect

  9  on December 31, 2005, and to address the prohibition on

10  multiple state rates in a revenue-neutral manner.

11         Section 17.  This act shall take effect July 1, 2003.

12

13            *****************************************

14                          SENATE SUMMARY

15    Revises various provisions relating to sales and use
      taxes, including provisions relating to the effective
16    date of changes in tax rates; determining the situs of
      taxable transactions; procedures to be used by sellers,
17    including sellers' responsibilities under the Streamlined
      Sales and Use Tax Agreement; credits for bad debts;
18    amnesty for unpaid or uncollected taxes; and
      administration of the agreement. (See bill for details.)
19

20

21

22

23

24

25

26

27

28

29

30

31

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