Senate Bill sb1776c2

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    Florida Senate - 2003                    CS for CS for SB 1776

    By the Committees on Appropriations; Finance and Taxation; and
    Senator Lynn




    309-2326-03

  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         "prewritten computer software," and "delivery

  9         charges" for purposes of sales and use taxes;

10         providing applicability; amending s. 212.05,

11         F.S.; deleting provisions relating to the

12         rental or lease of motor vehicles; providing

13         for determination of the location of the sale

14         or 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; creating s.

13         212.094, F.S.; providing that a purchaser

14         seeking a refund or credit under chapter 212,

15         F.S., must submit a written request for the

16         refund or credit; providing a time period

17         within which the dealer shall respond to the

18         written request; amending s. 212.17, F.S.;

19         prescribing additional guidelines and

20         procedures with respect to dealer credits for

21         taxes paid on worthless accounts; creating s.

22         213.052, F.S.; providing for notice of state

23         sales or use tax rate changes; creating s.

24         213.0521, F.S.; providing the effective date

25         for state sales and use tax rate changes;

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

27         to certain sellers for uncollected or unpaid

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

29         relating to simplified sales and use tax

30         administration; defining terms; providing that

31         authority to administer the Streamlined Sales

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 1         and Use Tax Agreement rests with a governing

 2         board comprised of representatives of member

 3         states; providing for continuing effect of the

 4         agreement; providing for annual recertification

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

 6         providing for the registration of sellers, the

 7         certification of a person as a certified

 8         service provider, and the certification of a

 9         software program as a certified automated

10         system by the governing board under the

11         Streamlined Sales and Use Tax Agreement;

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

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

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

15         and remitting any local option surtax for

16         certain dealers who make mail order sales;

17         declaring legislative intent; providing for the

18         adoption of emergency rules; providing an

19         effective date.

20  

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

22  

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

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

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

26  (40) are added to that section, to read:

27         212.02  Definitions.--The following terms and phrases

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

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

30  different meaning:

31  

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

 2  renting of living quarters or sleeping or housekeeping

 3  accommodations in hotels, apartment houses, roominghouses,

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

 5  defined as follows:

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

 7  transfer of possession or control of tangible personal

 8  property for a fixed or indeterminate term for consideration.

 9  A clause for a future option to purchase the equipment or to

10  extend the agreement does not preclude an agreement from being

11  a lease or rental. This definition shall be used for sales and

12  use tax purposes regardless of whether a transaction is

13  characterized as a lease or rental under generally accepted

14  accounting principles, the Internal Revenue Code, the Uniform

15  Commercial Code, or other provisions of federal, state, or

16  local law. This definition includes agreements covering motor

17  vehicles and trailers when the amount of consideration may be

18  increased or decreased by reference to the amount realized

19  upon sale or disposition of the property as defined in 26

20  U.S.C. s. 7701(h)(1). This definition does not include:

21         a.  A transfer of possession or control of property

22  under a security agreement or deferred payment plan that

23  requires the transfer of title upon completion of the required

24  payments;

25         b.  A transfer of possession or control of property

26  under an agreement that requires the transfer of title upon

27  completion of required payments and payment of an option price

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

29  total required payments; or

30         c.  Providing tangible personal property along with an

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

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 1  condition of this exclusion is that the operator is necessary

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

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

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

 5  or rental of tangible personal property and the possession or

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

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

 8  expressly provided to the contrary herein.

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

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

11  charges are subject to the jurisdiction of the United States

12  Interstate Commerce Commission, when such charges are paid by

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

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

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

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

17  high-voltage bulk transmission facilities in connection with

18  the possession or control of such facilities by a regional

19  transmission organization, independent system operator, or

20  similar entity under the jurisdiction of the Federal Energy

21  Regulatory Commission. However, where two taxpayers, in

22  connection with the interchange of facilities, rent or lease

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

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

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

26  involved.

27         (16)(a)  "Sales price" applies to the measure subject

28  to sales tax and means the total amount of consideration,

29  including cash, credit, property, and services, for which

30  personal property or services are sold, leased, or rented,

31  

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 1  valued in money, whether received in money or otherwise,

 2  without any deduction for the following:

 3         1.  The seller's cost of the property sold;

 4         2.  The cost of materials used, labor or service cost,

 5  interest, losses, all costs of transportation to the seller,

 6  all taxes imposed on the seller, and any other expense of the

 7  seller;

 8         3.  Charges by the seller for any services necessary to

 9  complete the sale, other than delivery and installation

10  charges;

11         4.  Delivery charges; and

12         5.  Installation charges.

13         (b)  The term "sales price" does not include;

14         1.  Trade-ins allowed and taken at the time of sale if

15  the amount is separately stated on the invoice, bill of sale,

16  or similar document given to the purchaser;

17         2.  Discounts, including cash, term, or coupons, which

18  are not reimbursed by a third party, which are allowed by a

19  seller, and taken by a purchaser at the time of sale;

20         3.  Interest, financing, and carrying charges from

21  credit extended on the sale of personal property or services,

22  if the amount is separately stated on the invoice, bill of

23  sale, or similar document given to the purchaser; and

24         4.  Any taxes legally imposed directly on the consumer

25  which are separately stated on the invoice, bill of sale, or

26  similar document given to the purchaser.

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

28  tangible personal property, including any services that are a

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

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

31  to the purchaser by the seller, without any deduction

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

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

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

 4  price" also includes the consideration for a transaction which

 5  requires both labor and material to alter, remodel, maintain,

 6  adjust, or repair tangible personal property. Trade-ins or

 7  discounts allowed and taken at the time of sale shall not be

 8  included within the purview of this subsection "Sales price"

 9  also includes the full face value of any coupon used by a

10  purchaser to reduce the price paid to a retailer for an item

11  of tangible personal property; where the retailer will be

12  reimbursed for such coupon, in whole or in part, by the

13  manufacturer of the item of tangible personal property; or

14  whenever it is not practicable for the retailer to determine,

15  at the time of sale, the extent to which reimbursement for the

16  coupon will be made. The term "sales price" does not include

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

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

19  include federal manufacturers' excise taxes, even if the

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

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

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

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

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

25  prewritten computer software, boats, motor vehicles and mobile

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

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

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

29  notes, insurance, or other obligations or securities;

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

31  

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

 2  the state.

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

 4  or authorized to act for the principal in a transaction

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

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

 7  represent the seller before the states that are signatories to

 8  the Streamlined Sales and Use Tax Agreement.

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

10  or rentals of personal property or services.

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

12  certified under the Streamlined Sales and Use Tax Agreement to

13  perform all of the seller's sales tax functions, other than

14  the seller's obligation to remit tax on its own purchases.

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

16  distributed by United States mail or other delivery service to

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

18  the purchaser or at the direction of the purchaser when the

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

20  The term includes tangible personal property supplied directly

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

22  inclusion in the package containing the printed material. The

23  term does not include multiple items of printed material

24  delivered to a single address.

25         (39)  "Prewritten computer software" means computer

26  software, including prewritten upgrades, which is not designed

27  and developed by the author or other creator to the

28  specifications of a specific purchaser. The combining of two

29  or more "prewritten computer software" programs or prewritten

30  portions thereof does not cause the combination to be other

31  than "prewritten computer software." The term includes

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 1  software designed and developed by the author or other creator

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

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

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

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

 6  or creator only of such person's modifications or

 7  enhancements. Prewritten computer software, or a prewritten

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

 9  when such modification or enhancement is designed and

10  developed to the specifications of a specific purchaser,

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

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

13  statement of the price given to the purchaser for such

14  modification or enhancement, such modification or enhancement

15  does not constitute "prewritten computer software."

16         (40)  "Delivery charges" means charges by the seller of

17  personal property or services for preparation and delivery to

18  a location designated by the purchaser of personal property or

19  services, including, but not limited to, transportation,

20  shipping, postage, handling, crating, and packing. The term

21  does not include the charges for delivery of "direct mail" as

22  defined by this section if the charges are separately stated

23  on an invoice or similar billing document given to the

24  purchaser.

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

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

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

28  not apply retroactively to leases or rentals existing before

29  that date.

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

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

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

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

 3  taxable privilege who engages in the business of selling

 4  tangible personal property at retail in this state, including

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

 6  furnishes any of the things or services taxable under this

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

 8  any item or article of tangible personal property as defined

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

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

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

12  due and payable as follows:

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

14  derived from the lease or rental of tangible personal

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

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

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

18  period of less than 12 months:

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

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

21  is dropped off in another state.

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

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

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

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

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

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

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

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

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

31  

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

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

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

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

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

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

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

 8  Columbia, the Florida tax payable shall be reduced in

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

10  subparagraph shall only be available when the lease or rental

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

12  established business or the same is incidental or germane to

13  such business.

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

15         a.  Prepaid calling arrangements. The tax on charges

16  for prepaid calling arrangements shall be collected at the

17  time of sale and remitted by the selling dealer.

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

19  stated retail sale by advance payment of communications

20  services that consist exclusively of telephone calls

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

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

23  entered and that are sold in predetermined units or dollars

24  whose number declines with use in a known amount.

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

26  arrangement is deemed to take place in accordance with

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

28  communications service that is a prepaid calling arrangement,

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

30  prepaid calling arrangement does not take place at the

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

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

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

 3  customer's mobile telephone number.

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

 5  arrangement shall be treated as a sale of tangible personal

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

 7  tangible item evidencing such arrangement is furnished to the

 8  purchaser, and such sale within this state subjects the

 9  selling dealer to the jurisdiction of this state for purposes

10  of this subsection.

11         b.  The installation of telecommunication and

12  telegraphic equipment.

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

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

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

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

17  shall be equally applicable to any tax paid under the

18  provisions of this section on charges for prepaid calling

19  arrangements, telecommunication or telegraph services, or

20  electric power subsequently found to be uncollectible. The

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

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

23  subdivision of the state, or any municipality upon the

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

25  upon the purchase or sale of telecommunication, television

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

27  tax is collected by the seller from the purchaser.

28         Section 4.  Section 212.054, Florida Statutes, is

29  amended to read:

30         212.054  Discretionary sales surtax; limitations,

31  administration, and collection.--

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

 2  the governing body of any county unless specifically

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

 4  authorized pursuant to said section shall be administered and

 5  collected exclusively as provided in this section.

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

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

 8  discretionary surtax on all transactions occurring in the

 9  county which transactions are subject to the state tax imposed

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

11  transactions by this chapter and communications services as

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

13  shall be computed as the applicable rate or rates authorized

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

15  taxable purchases representing such transactions.  If the

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

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

18  computed by multiplying the rate imposed by the county within

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

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

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

22  service, or the tangible personal property representing the

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

24  discretionary sales surtax.

25         (b)  However:

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

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

28  However, charges for prepaid calling arrangements, as defined

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

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

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

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 1  tangible personal property are sold to the same purchaser at

 2  the same time and, under generally accepted business practice

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

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

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

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

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

 8  of a single sale or rental.

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

10  starting before and ending after the effective date of the

11  surtax, the rate shall apply as follows:

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

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

14  after the effective date of the surtax or increase.

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

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

17  effective date of the rate change. billed on or after the

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

19  charge for utility services shall be subject to the surtax. In

20  the case of utility services billed after the last day the

21  surtax is in effect, the entire amount of the charge on said

22  items shall not be subject to the surtax.

23  

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

25  any communications services as defined in chapter 202.

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

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

28  construction of improvements to real property or for

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

30  the contractor responsible for the performance of the

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

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 1  any such surtax paid on materials necessary for the completion

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

 3  later than 15 months following initial imposition of the

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

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

 6  application shall include proof of the written contract and of

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

 8  statement, signed by the applicant or its representative,

 9  attesting to the validity of the application.  The department

10  shall, within 30 days after approval of a complete

11  application, certify to the county information necessary for

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

13  authorized to issue refunds for this purpose and shall set

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

15  any refund lawfully due.  Any person who fraudulently obtains

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

17  in addition to being liable for repayment of any refund

18  fraudulently obtained plus a mandatory penalty of 100 percent

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

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

21  775.084.

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

23  vehicle common carrier entitled to partial exemption from tax

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

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

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

27  month to total purchases in this state of property qualified

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

29  to establish the portion used and consumed in intracounty

30  movement and subject to surtax.

31  

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

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

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

 4  county imposing the surtax when the location where the sale is

 5  deemed to take place in accordance with s. 212.06(3) is

 6  located in a county that imposes a surtax.

 7         (4)(3)  For the purpose of this section, a transaction

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

 9  surtax when:

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

11  includes an item of tangible personal property that is a

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

13  service, or tangible personal property representing a service,

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

15  the tangible personal property representing the service is

16  delivered within the county.  If there is no reasonable

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

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

19  the bill of sale.

20         (b)2.  Notwithstanding subsection (3), the retail sale,

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

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

23  212.06(3)(g), or the retail sale of a mobile home of a class

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

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

26  county identified as the residence address of the purchaser on

27  the registration or title document for such property.

28         (c)  The real property that is leased or rented is

29  located in the county.

30         (d)  The transient rental transaction occurs in the

31  county.

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

 2  located in the county.

 3         (f)  The coin-operated amusement or vending machine is

 4  located in the county.

 5         (g)  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         (h)(d)1.  Notwithstanding subsection (3), the delivery

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

12  any aircraft that does not qualify as "transportation

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

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

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

16  Government to a location in the county.

17         2.  The user of any aircraft or boat of a class or type

18  which is required to be registered, licensed, titled, or

19  documented in this state or by the United States Government

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

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

22  the county.

23         3.2.  However, it shall be presumed that such items

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

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

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

27         4.3.  This paragraph does not apply to the use or

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

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

30         (i)(e)  The purchaser of any motor vehicle or mobile

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

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

 2  the address appearing on or to be reflected on the

 3  registration document for such property.

 4         (j)(f)1.  Any motor vehicle or mobile home of a class

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

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

 7  residing therein for the purpose of use, consumption,

 8  distribution, or storage in the taxing county.

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

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

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

12  county.

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

14  located in the county.

15         (h)  The transient rental transaction occurs in the

16  county.

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

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

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

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

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

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

23  outside the county.

24         (k)(j)  The dealer owing a use tax on purchases or

25  leases is located in the county.

26         (k)  The delivery of tangible personal property other

27  than that described in paragraph (d), paragraph (e), or

28  paragraph (f) is made to a location outside the county, but

29  the property is brought into the county within 6 months after

30  delivery, in which event, the owner must pay the surtax as a

31  use tax.

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

 2  located in the county.

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

 4  tangible personal property is located in the county,

 5  notwithstanding any other provision of this section.

 6         (5)(4)(a)  The department shall administer, collect,

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

 8  the same procedures used in the administration, collection,

 9  and enforcement of the general state sales tax imposed under

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

11  section.  The provisions of this chapter regarding interest

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

13  Discretionary sales surtaxes shall not be included in the

14  computation of estimated taxes pursuant to s. 212.11.

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

16  separately state the amount of the surtax on the charge

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

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

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

20  received by the department pursuant to a specific

21  authorization and levy under s. 212.055, including any

22  interest and penalties on delinquent surtaxes.

23         (b)  The proceeds of a discretionary sales surtax

24  collected by the selling dealer located in a county which

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

26  administration, to the county where the selling dealer is

27  located. The proceeds shall be transferred to the

28  Discretionary Sales Surtax Clearing Trust Fund. A separate

29  account shall be established in such trust fund for each

30  county imposing a discretionary surtax.  The amount deducted

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

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 1  the total revenue generated for all counties levying a surtax

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

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

 4  solely and directly attributable to the surtax.  The total

 5  cost of administration shall be prorated among those counties

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

 7  particular county to the total amount collected for all

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

 9  shall submit a written report which details the expenses and

10  amounts deducted for the costs of administration to the

11  President of the Senate, the Speaker of the House of

12  Representatives, and the governing authority of each county

13  levying a surtax.  The department shall distribute the moneys

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

15  unless otherwise provided in s. 212.055.

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

17  impose a discretionary sales surtax but who collects the

18  surtax due to sales of tangible personal property or services

19  delivered outside the county shall remit monthly the proceeds

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

21  account in the Discretionary Sales Surtax Clearing Trust Fund

22  which is separate from the county surtax collection accounts.

23  The department shall distribute funds in this account using a

24  distribution factor determined for each county that levies a

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

26  and available for distribution.  The distribution factor for

27  each county equals the product of:

28         a.  The county's latest official population determined

29  pursuant to s. 186.901;

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

31  

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

 2  during the most recent distribution period;

 3  

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

 5  levying the surtax during the most recent distribution period.

 6         2.  The department shall compute distribution factors

 7  for eligible counties once each quarter and make appropriate

 8  quarterly distributions.

 9         3.  A county that fails to timely provide the

10  information required by this section to the department

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

12  information available to it in distributing surtax revenues to

13  the county.  If this information is unavailable to the

14  department, the department may partially or entirely

15  disqualify the county from receiving surtax revenues under

16  this paragraph.  A county that fails to provide timely

17  information waives its right to challenge the department's

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

19  provided under this paragraph.

20         (5)  No discretionary sales surtax or increase or

21  decrease in the rate of any discretionary sales surtax shall

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

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

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

25  discretionary sales surtax shall enact an ordinance levying

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

27  125.66(2).

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

29  surtax by the governing body of any county levying a

30  discretionary sales surtax or the school board of any county

31  levying the school capital outlay surtax authorized by s.

                                  21

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

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

 3  notify the department within 10 days after final adoption by

 4  ordinance or referendum of an adoption, repeal imposition,

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

 6  November 16 immediately preceding such April 1 November 16

 7  prior to the effective date. The notice must specify the time

 8  period during which the surtax will be in effect and the rate

 9  and must include a copy of the ordinance and such other

10  information as the department requires by rule. Failure to

11  timely provide such notification to the department shall

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

13  year.

14         (b)  In addition to the notification required by

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

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

17  county proposing to levy the school capital outlay surtax

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

19  October 1 if the referendum or consideration of the ordinance

20  that would result in imposition, termination, or rate change

21  of the surtax is scheduled to occur on or after October 1 of

22  that year. Failure to timely provide such notification to the

23  department shall result in the delay of the effective date for

24  a period of 1 year.

25         (8)  The department shall provide notice of such

26  adoption, repeal, or change to all affected sellers by the

27  December 1 immediately preceding the April 1 effective date.

28         (9)(8)  With respect to any motor vehicle or mobile

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

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

31  taxing county as herein provided shall be collected from the

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 1  purchaser or user incident to the titling and registration of

 2  such property, irrespective of whether such titling or

 3  registration occurs in the taxing county.

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

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

 6  local taxing jurisdictions in accordance with the Streamlined

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

 8  of s. 202.22(2) shall apply.

 9         (a)  A seller or certified service provider who

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

11  imposed by this chapter shall use the database provided under

12  s. 202.22(2).

13         (b)  A seller or certified service provider who

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

15  imposed under this chapter shall be held harmless from tax,

16  interest, and penalties, which would otherwise be due solely

17  as a result of the seller or certified service provider

18  relying on an incorrect taxing jurisdiction assignment made in

19  the database provided under s. 202.22(2).

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

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

22  business location of the seller.

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

24  section 212.06, Florida Statutes, are renumbered as

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

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

27  section is amended to read:

28         212.06  Sales, storage, use tax; collectible from

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

30  legislative intent as to scope of tax.--

31  

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

 2  subsection to determine the source of a transaction for

 3  purposes of applying the tax imposed by this chapter. When the

 4  source of the transaction is determined to be a Florida

 5  location, the tax imposed by this chapter applies in

 6  accordance with this chapter.

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

 8  "receive" and "receipt" mean:

 9         1.  Taking possession of tangible personal property;

10         2.  Making first use of services; or

11         3.  Taking possession or making first use of digital

12  goods, whichever comes first.

13  

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

15  behalf of the purchaser.

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

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

18  a service.

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

20  taxes levied on the following:

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

22  homes, manufactured homes, or mobile homes;

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

24  motor vehicles or aircraft that do not qualify as

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

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

27  occurred in accordance with paragraph (f).

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

29  florist.

30  

31  

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

 2  s. 212.054(4).

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

 4  rental, shall be deemed to take place:

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

 6  business location of the seller, at that business location.

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

 8  at a business location of the seller, at the location where

 9  receipt by the purchaser, or the purchaser's donee, designated

10  as such by the purchaser, occurs, including the location

11  indicated by instructions for delivery to the purchaser or

12  donee, known to the seller.

13         3.  When subparagraphs 1. and 2. do not apply, at the

14  location indicated by an address for the purchaser which is

15  available from the business records of the seller which are

16  maintained in the ordinary course of the seller's business

17  when use of this address does not constitute bad faith.

18         4.  When subparagraphs 1., 2., and 3. do not apply, at

19  the location indicated by an address for the purchaser

20  obtained during the consummation of the sale, including the

21  address of a purchaser's payment instrument, if no other

22  address is available, when use of this address does not

23  constitute bad faith.

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

25  including when the seller is without sufficient information to

26  apply the previous paragraphs, the address from which tangible

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

28  the computer software delivered electronically was first

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

30  service was provided, disregarding any location that merely

31  provided the digital transfer of the product sold.

                                  25

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

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

 3  shall be deemed to have occurred as follows:

 4         1.  For a lease or rental that requires recurring

 5  periodic payments, the first periodic payment is deemed to

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

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

 8  periodic payments are deemed to have occurred at the primary

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

10  primary property location is determined by an address for the

11  property provided by the lessee which is available to the

12  lessor from its records maintained in the ordinary course of

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

14  faith. The property location shall not be altered by

15  intermittent use of the property at different locations, such

16  as use of business property that accompanies employees on

17  business trips and service calls.

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

19  recurring periodic payments, the payment is deemed to take

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

21  notwithstanding the exclusion of lease or rental in paragraph

22  (d).

23         3.  This paragraph does not affect the imposition or

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

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

26  property for lease.

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

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

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

30         1.  For a lease or rental that requires recurring

31  periodic payments, each periodic payment is deemed to take

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 1  place at the primary property location. The primary property

 2  location shall be determined by an address for the property

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

 4  its records maintained in the ordinary course of business,

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

 6  location shall not be altered by intermittent use at different

 7  locations.

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

 9  recurring periodic payments, the payment is deemed to take

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

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

12         3.  This paragraph does not affect the imposition or

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

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

15  property for lease.

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

17  transportation equipment shall be deemed to take place in

18  accordance with paragraph (d), notwithstanding the exclusion

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

20  equipment" means:

21         1.  Locomotives and railcars that are used for the

22  carriage of persons or property in interstate commerce;

23         2.  Trucks and truck tractors with a Gross Vehicle

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

25  semitrailers, or passenger buses that are registered through

26  the International Registration Plan and operated under

27  authority of a carrier authorized and certificated by the

28  United States Department of Transportation or another federal

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

30  interstate commerce;

31  

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 1         3.  Aircraft that are operated by air carriers

 2  authorized and certificated by the United States Department of

 3  Transportation or another federal or a foreign authority to

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

 5  foreign commerce; or

 6         4.  Containers designed for use on and component parts

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

 8  through 3.

 9         (4)(3)(a)  Except as provided in paragraphs (a) and

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

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

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

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

14  imposed by this chapter from the purchaser.

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

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

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

18  software delivered electronically, or a service that the

19  digital good, computer software delivered electronically, or

20  service will be concurrently available for use in more than

21  one jurisdiction shall deliver to the dealer a multiple points

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

23  purchase.

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

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

26  applicable tax, and the purchaser shall be obligated to

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

28  basis.

29         2.  A purchaser delivering the MPU exemption form may

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

31  apportionment that is supported by the purchaser's business

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

 2  sale.

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

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

 5  the subsequent sale's specific apportionment that is governed

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

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

 8  in writing.

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

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

11  permitholder shall follow the provisions of subparagraph 2. in

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

13  will be concurrently available for use in more than one

14  jurisdiction.

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

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

17  provide to the seller in conjunction with the purchase either

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

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

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

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

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

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

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

25  the purchaser until it is revoked in writing.

26         2.  Upon receipt of information from the purchaser

27  showing the jurisdictions to which the direct mail is

28  delivered to recipients, the seller shall collect the tax

29  according to the delivery information provided by the

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

31  of any further obligation to collect tax on any transaction

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 1  where the seller has collected tax pursuant to the delivery

 2  information provided by the purchaser.

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

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

 5  a direct mail form or delivery information as required by

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

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

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

 9  direct mail is delivered.

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

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

12  not required to provide a direct mail form or delivery

13  information to the seller. A purchaser of printed materials

14  shall have sole responsibility for the taxes imposed by this

15  chapter on those materials when the printer of the materials

16  delivers them to the United States Postal Service for mailing

17  to persons other than the purchaser located within and outside

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

19  other than the purchaser located within and outside this state

20  shall have no obligation or responsibility for the payment or

21  collection of any taxes imposed under this chapter on those

22  materials. However, printers are obligated to collect the

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

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

25  persons located within this state. For purposes of the

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

27  presumption that all materials printed at a facility are

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

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

30  purchaser to the printer concerning the delivery of the

31  printed materials for that purchase or all purchases shall be

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 1  sufficient for purposes of rebutting the presumption created

 2  herein.

 3         5.2.  The Department of Revenue is authorized to adopt

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

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

 6  Florida Statutes, are amended to read:

 7         212.08  Sales, rental, use, consumption, distribution,

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

 9  the rental, the use, the consumption, the distribution, and

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

11  following are hereby specifically exempt from the tax imposed

12  by this chapter.

13         (1)  EXEMPTIONS; GENERAL GROCERIES.--

14         (a)  Food and food ingredients products for human

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

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

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

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

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

20  ingestion or chewing by humans and are consumed for their

21  taste or nutritional value edible commodities, whether

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

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

24  limited to, all of the following:

25         1.  Cereals and cereal products, baked goods,

26  oleomargarine, meat and meat products, fish and seafood

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

28  products, vegetables and vegetable products, fruit and fruit

29  products, spices, salt, sugar and sugar products, milk and

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

31  

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 1         2.  Natural fruit or vegetable juices or their

 2  concentrates or reconstituted natural concentrated fruit or

 3  vegetable juices, whether frozen or unfrozen, dehydrated,

 4  powdered, granulated, sweetened or unsweetened, seasoned with

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

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

 7         1.3.  Bakery products sold by bakeries, pastry shops,

 8  or like establishments, if sold without eating utensils.

 9  Bakery products for purposes of this subsection include bread,

10  rolls, buns, biscuits, bagels, croissants, pastries,

11  doughnuts, danish, cakes, tortes, pies, tarts, muffins, bars,

12  cookies, and tortillas that do not have eating facilities.

13         2.  Dietary supplements. The term "dietary supplements"

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

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

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

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

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

19  a concentrate, metabolite, constituent, extract, or

20  combination of any ingredient described in this subparagraph

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

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

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

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

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

26  dietary supplement, identifiable by the "supplemental facts"

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

28  s. 101.36.

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

30  apply:

31  

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

 2  consumption on or off the premises of the dealer.

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

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

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

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

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

 8         3.  When the food products are ordinarily sold for

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

10  location at which parking facilities are provided primarily

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

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

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

14  taken from the premises of the dealer.

15         4.  To sandwiches sold ready for immediate consumption

16  on or off the seller's premises.

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

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

19  to an admission charge.

20         1.6.  When the food and food ingredients products are

21  sold as hot prepared food products.

22         2.7.  To soft drinks, which include, but are not

23  limited to, any nonalcoholic beverage, any preparation or

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

25  noncarbonated drink made from milk derivatives or tea, when

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

27  means nonalcoholic beverages that contain natural or

28  artificial sweeteners. Soft drinks do not include beverages

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

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

31  juice by volume.

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 1         8.  To ice cream, frozen yogurt, and similar frozen

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

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

 4  or not sold separately.

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

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

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

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

 9         3.10.  When the food and food ingredients products are

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

11  any other form of vehicle.

12         4.11.  To candy and any similar product regarded as

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

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

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

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

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

18  pieces. Candy does not include any preparation that contains

19  flour and requires no refrigeration.

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

21  or like establishments that have eating facilities, except

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

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

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

25  taverns, or other like places of business.

26         5.  To tobacco.

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

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

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

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

31  

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

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

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

 4  determining whether an item of food is sold for immediate

 5  consumption, there shall be considered the customary

 6  consumption practices prevailing at the selling facility.

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

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

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

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

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

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

13  beverages are served.

14         1.4.  "Hot Prepared food products" means food sold in a

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

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

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

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

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

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

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

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

23  containing these raw animal foods requiring cooking by the

24  consumer as recommended by the Food and Drug Administration in

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

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

27  subsection includes sandwiches sold for immediate consumption,

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

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

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

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

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

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

 3  single price has been established for the combination and the

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

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

 6  hot pizza, or ice cream cones or sundaes, or food sold in an

 7  unheated state by weight or volume as a single item, including

 8  cold components or side items.

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

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

11  paragraphs, when purchased with food coupons or Special

12  Supplemental Food Program for Women, Infants, and Children

13  vouchers issued under authority of federal law.

14         2.  This paragraph is effective only while federal law

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

16  program or Special Supplemental Food Program for Women,

17  Infants, and Children if there is an official determination

18  that state or local sales taxes are collected within that

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

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

21  drinks on which federal law shall permit sales taxes without

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

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

24  food are not exempt.

25         (2)  EXEMPTIONS; MEDICAL.--

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

27  chapter:

28         1.  Any drug;

29         2.  Durable medical equipment, mobility enhancing

30  equipment, or prosthetic device any medical products and

31  supplies or medicine dispensed according to an individual

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 1  prescription or prescriptions written by a prescriber

 2  authorized by law to prescribe medicinal drugs;

 3         3.  Hypodermic needles; hypodermic syringes;

 4         4.  Chemical compounds and test kits used for the

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

 6  intended for one-time use;

 7         5.  Over-the-counter drugs and common household

 8  remedies recommended and generally sold for internal or

 9  external use in the cure, mitigation, treatment, or prevention

10  of illness or disease in human beings, but not including

11  grooming and hygiene products;

12         6.  Bandaids, gauze, bandages, adhesive tape;

13         7.  Hearing aids;

14         8.  Dental prosthesis; or

15         9.  Funerals.

16  

17   Funeral directors shall pay tax on all tangible personal

18  property used by them in their business. cosmetics or toilet

19  articles, notwithstanding the presence of medicinal

20  ingredients therein, according to a list prescribed and

21  approved by the Department of Health, which list shall be

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

23  included in the rules promulgated by the Department of

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

25  this chapter artificial eyes and limbs; orthopedic shoes;

26  prescription eyeglasses and items incidental thereto or which

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

28  prosthetic and orthopedic appliances; and funerals. In

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

30  essential optical characteristics to contact lenses shall be

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

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

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

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

 4  Funeral directors shall pay tax on all tangible personal

 5  property used by them in their business.

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

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

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

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

10  alcoholic beverages, which is:

11         a.  Recognized in the official United States

12  Pharmacopoeia, official Homeopathic Pharmacopoeia of the

13  United States, or official National Formulary, or the

14  supplement to any of them;

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

16  mitigation, treatment, or prevention of disease; or

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

18  the body.

19         2.  "Durable medical equipment" means equipment,

20  including repair and replacement parts to such equipment, but

21  the term does not include mobility-enhancing equipment, which

22  can withstand repeated use, is primarily and customarily used

23  to serve a medical purpose, generally is not useful to a

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

25  or in the body.

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

27  including repair and replacement parts to such equipment, but

28  the term does not include durable medical equipment, which:

29         a.  Is primarily and customarily used to provide or

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

31  

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

 2  vehicle;

 3         b.  Is not generally used by persons with normal

 4  mobility; and

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

 6  on a motor vehicle normally provided by a motor vehicle

 7  manufacturer.

 8         4.  "Prosthetic device" means a replacement,

 9  corrective, or supportive device, including repair or

10  replacement parts to such equipment, other than a hearing aid

11  or a dental prosthesis, that is worn on or in the body to:

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

13         b.  Prevent or correct physical deformity or

14  malfunction; or

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

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

17  cleaning solutions, shampoo, toothpaste, mouthwash,

18  antiperspirants, and suntan lotions and screens, regardless of

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

20  drugs.

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

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

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

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

25  active ingredients with a list of those ingredients contained

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

27  orthopedic appliances" means any apparatus, instrument,

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

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

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

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

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

 2  according to an individual prescription or prescriptions

 3  written by a physician licensed under chapter 458, chapter

 4  459, chapter 460, chapter 461, or chapter 466, or according to

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

 6  which list shall be certified to the Department of Revenue

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

 8  Department of Revenue.

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

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

11  otherwise applied to the human body for cleansing,

12  beautifying, promoting attractiveness, or altering the

13  appearance and also means articles intended for use as a

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

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

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

17  held out for sale for grooming purposes and those articles

18  that are customarily used for grooming purposes, regardless of

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

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

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

22         7.4.  "Prescription" means an order, formula, or recipe

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

24  means of transmission by a duly licensed practitioner

25  authorized by chapter 458, chapter 459, chapter 460, chapter

26  461, or chapter 466. The term also includes an orally

27  transmitted order by the lawfully designated agent of such

28  practitioner. The term also includes an order written or

29  transmitted by a practitioner licensed to practice in a

30  jurisdiction other than this state, but only if the pharmacist

31  called upon to dispense such order determines, in the exercise

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 1  of his or her professional judgment, that the order is valid

 2  and necessary for the treatment of a chronic or recurrent

 3  illness. includes any order for drugs or medicinal supplies

 4  written or transmitted by any means of communication by a duly

 5  licensed practitioner authorized by the laws of the state to

 6  prescribe such drugs or medicinal supplies and intended to be

 7  dispensed by a pharmacist. The term also includes an orally

 8  transmitted order by the lawfully designated agent of such

 9  practitioner. The term also includes an order written or

10  transmitted by a practitioner licensed to practice in a

11  jurisdiction other than this state, but only if the pharmacist

12  called upon to dispense such order determines, in the exercise

13  of his or her professional judgment, that the order is valid

14  and necessary for the treatment of a chronic or recurrent

15  illness. The term also includes a pharmacist's order for a

16  product selected from the formulary created pursuant to s.

17  465.186. A prescription may be retained in written form, or

18  the pharmacist may cause it to be recorded in a data

19  processing system, provided that such order can be produced in

20  printed form upon lawful request.

21         (c)  Chlorine shall not be exempt from the tax imposed

22  by this chapter when used for the treatment of water in

23  swimming pools.

24         (d)  Lithotripters are exempt.

25         (d)(e)  Human organs are exempt.

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

27  veterinarians, and hospitals in connection with medical

28  treatment are exempt.

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

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

31  disease, or incapacity which are temporarily or permanently

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

 2  healing arts licensed in the state are exempt.

 3         (h)  The purchase by a veterinarian of commonly

 4  recognized substances possessing curative or remedial

 5  properties which are ordered and dispensed as treatment for a

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

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

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

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

10  the purchase by a veterinarian of antiseptics, absorbent

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

12  remedies.

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

14  radiopaque, such as the various opaque dyes and barium

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

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

17         (e)(j)  Parts, special attachments, special lettering,

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

19  personal property so that a handicapped person can use them

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

21  to an individual prescription.

22         (f)(k)  This subsection shall be strictly construed and

23  enforced.

24         Section 7.  Section 212.095, Florida Statutes, is

25  amended to read:

26         212.095  Refunds.--

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

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

29         (2)(a)  No person may secure a refund under this

30  chapter unless such person is the holder of an unrevoked

31  refund permit issued by the department before the purchase for

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 1  which a refund is sought, which permit shall be numbered and

 2  issued annually.

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

 4  department an application, on forms furnished by the

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

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

 7  intends to file an application for refund for the current

 8  calendar year, and must furnish the department such other

 9  information as the department requests.

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

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

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

13  on the date issued by the department.

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

15  any provision of this section or any regulation pursuant

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

17  swearing within the period of 5 years preceding the

18  application, or if the department has evidence of the

19  financial irresponsibility of the applicant, the department

20  may require the applicant to execute a corporate surety bond

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

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

23  applicant may become liable under this chapter.

24         (2)(3)(a)  When a sale is made to a person who claims

25  to be entitled to a refund under this section, the seller

26  shall make out a sales invoice, which shall contain the

27  following information:

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

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

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

31  

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

 2  services.

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

 4  which the sale was made.

 5         6.  The refund permit number of the purchaser.

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

 7  purchaser for attachment to his or her application for a

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

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

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

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

12  invoice is incomplete and fails to contain the full

13  information required in this subsection.

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

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

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

17         (3)(4)(a)  No refund may be authorized unless a sworn

18  application therefor containing the information required in

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

20  days immediately following the quarter for which the refund is

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

22  justified excuse for late filing is presented to the

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

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

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

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

27  made upon forms prescribed by the department.

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

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

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

31  Fund.

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 1         (c)  Refund application forms shall include at a

 2  minimum the following information:

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

 4  refund.

 5         2.  The refund permit number of such person.

 6         2.3.  The location at which the items or services for

 7  which a refund is claimed are used.

 8         3.4.  A description of each such item or service and

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

10         4.5.  Copies of the sales invoices of items or services

11  for which a refund is being claimed.

12         (4)(5)  The right to receive any refund under the

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

14  executor or administrator, or to the receiver, trustee in

15  bankruptcy, or assignee in an insolvency proceeding, of the

16  person entitled to the refund.

17         (5)(6)(a)  Each registered dealer shall, in accordance

18  with the requirements of the department, keep at his or her

19  principal place of business in this state or at the location

20  where the sale is made a complete record or duplicate sales

21  tickets of all items or services sold by the registered dealer

22  for which a refund provided in this section may be claimed,

23  which records shall contain the information required in

24  paragraph (2) (3)(a).

25         (b)  Every person applying for to whom a refund permit

26  has been issued under this section shall, in accordance with

27  the requirements of the department, keep at his or her

28  residence or principal place of business in this state a

29  record of each purchase for which a refund is claimed,

30  including the information required in paragraph (2) (3)(a).

31  

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 1         (c)  The records required to be kept under this

 2  subsection shall at all reasonable hours be subject to audit

 3  or inspection by the department or by any person duly

 4  authorized by it.  Such records shall be preserved and may not

 5  be destroyed until 3 years after the date the item to which

 6  they relate was sold or purchased.

 7         (d)  The department shall keep a permanent record of

 8  the amount of refund claimed and paid to each claimant.  Such

 9  records shall be open to public inspection.

10         (6)(7)  Agents of the department are authorized to go

11  upon the premises of any refund applicant permitholder, or

12  duly authorized agent thereof, to make an inspection to

13  ascertain any matter connected with the operation of this

14  section or the enforcement hereof. However, no agent may enter

15  the dwelling of any person without the consent of the occupant

16  or authority from a court of competent jurisdiction.

17         (7)(8)  If any taxes are refunded erroneously, the

18  department shall advise the payee by registered mail of the

19  erroneous refund.  If the payee fails to reimburse the state

20  within 15 days after the receipt of the letter, an action may

21  be instituted by the department against such payee in the

22  circuit court, and the department shall recover from the payee

23  the amount of the erroneous refund plus a penalty of 25

24  percent.

25         (8)(9)  No person shall:

26         (a)  Knowingly make a false or fraudulent statement in

27  an application for a refund permit or in an application for a

28  refund of any taxes under this section;

29         (b)  Fraudulently obtain a refund of such taxes; or

30         (c)  Knowingly aid or assist in making any such false

31  or fraudulent statement or claim.

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 1         (10)  The refund permit of any person who violates any

 2  provision of this section shall be revoked by the department

 3  and may not be reissued until 2 years have elapsed from the

 4  date of such revocation.  The refund permit of any person who

 5  violates any other provision of this chapter may be suspended

 6  by the department for any period, in its discretion, not

 7  exceeding 6 months.

 8         (9)(11)  Refund permits and refund application forms

 9  shall include instructions for dealers and purchasers as to

10  the relevant requirements of this section.

11         Section 8.  Section 212.094, Florida Statutes, is

12  created to read:

13         212.094  Purchaser requests for refunds from dealers.--

14         (1)  If a purchaser seeks a refund of or credit from a

15  dealer for a tax collected under this chapter by that dealer,

16  the purchaser must submit a written request for the refund or

17  credit to the dealer in accordance with this section. The

18  request must contain all the information necessary for the

19  dealer to determine the validity of the purchaser's request.

20         (2)  The purchaser may not take any other action

21  against the dealer with respect to the requested refund or

22  credit until the dealer has had 60 days following receipt of a

23  completed request in which to respond.

24         (3)  Nothing in this section is intended to change the

25  law regarding standing to claim a refund.

26         Section 9.  Subsection (3) of section 212.17, Florida

27  Statutes, is amended to read:

28         212.17  Credits for returned goods, rentals, or

29  admissions; goods acquired for dealer's own use and

30  subsequently resold; additional powers of department.--

31  

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 1         (3)  A dealer who has paid the tax imposed by this

 2  chapter on tangible personal property or services may take a

 3  credit or obtain a refund for any tax paid by the dealer on

 4  the unpaid balance due on worthless accounts within 12 months

 5  following the month in which the bad debt has been charged off

 6  for federal income tax purposes. A dealer who has paid the tax

 7  imposed by this chapter on tangible personal property or

 8  services and who is not required to file federal income tax

 9  returns may take a credit or obtain a refund for any tax paid

10  by the dealer on the unpaid balance due on worthless accounts

11  within 12 months following the month in which the bad debt is

12  written off as uncollectible in the dealer's books and records

13  and would be eligible for a bad debt deduction for federal

14  income tax purposes if the dealer was required to file a

15  federal income tax return.

16         (a)  A dealer that is taking a credit or obtaining a

17  refund on worthless accounts shall base the bad debt recovery

18  calculation in accordance with 26 U.S.C. s. 166.

19         (b)  Notwithstanding paragraph (a), the amount

20  calculated pursuant to 26 U.S.C. s. 166 shall be adjusted to

21  exclude financing charges or interest; sales or use taxes

22  charged on the purchase price; uncollectible amounts on

23  property that remain in the possession of the seller until the

24  full purchase price is paid; expenses incurred in attempting

25  to collect any debt; and repossessed property.

26         (c)  When the amount of bad debt exceeds the amount of

27  taxable sales for the period during which the bad debt is

28  written off, a refund claim may be filed in accordance with

29  the timing provisions of s. 215.26(2), except that the statute

30  of limitations for filing the refund claim shall be measured

31  

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 1  from the due date of the return on which the bad debt could

 2  first be claimed.

 3         (d)  If any accounts so charged off for which a credit

 4  or refund has been obtained are thereafter in whole or in part

 5  paid to the dealer, the amount so paid shall be included in

 6  the first return filed after such collection and the tax paid

 7  accordingly.

 8         (e)  Where filing responsibilities have been assumed by

 9  a certified service provider, the certified service provider

10  shall claim, on behalf of the seller, any bad debt allowance

11  provided by this section. The certified service provider must

12  credit or refund to the seller the full amount of any bad debt

13  allowance or refund received.

14         (f)  For the purposes of reporting a payment received

15  on a previously claimed bad debt, any payments made on a debt

16  or account are applied first proportionally to the taxable

17  price of the property or service and the sales tax thereon,

18  and secondly to interest, service charges, and any other

19  charges.

20         (g)  In situations in which the books and records of

21  the party claiming the bad debt allowance support an

22  allocation of the bad debts among states that are members of

23  the Streamlined Sales and Use Tax Agreement, the allocation is

24  permitted among those states.

25         Section 10.  Section 213.052, Florida Statutes, is

26  created to read:

27         213.052  Notice of state rate changes.--

28         (1)  A sales or use tax rate change imposed under

29  chapter 212 is effective on January 1, April 1, July 1, or

30  October 1. The Department of Revenue shall provide notice of

31  

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 1  such rate change to all affected sellers 90 days before the

 2  effective date of the rate change.

 3         (2)  Failure of a seller to receive notice does not

 4  relieve the seller of its obligation to collect sales or use

 5  tax.

 6         Section 11.  Section 213.0521, Florida Statutes, is

 7  created to read:

 8         213.0521  Effective date of state rate changes.--The

 9  effective date for services covering a period starting before

10  and ending after the statutory effective date shall be as

11  follows:

12         (1)  For a rate increase, the new rate shall apply to

13  the first billing period starting on or after the effective

14  date.

15         (2)  For a rate decrease, the new rate shall apply to

16  bills rendered on or after the effective date.

17         Section 12.  Subsection (11) is added to section

18  213.21, Florida Statutes, to read:

19         213.21  Informal conferences; compromises.--

20         (11)  Amnesty shall be provided for uncollected or

21  unpaid sales or use tax to a seller who registers to pay or to

22  collect and remit applicable sales or use tax in accordance

23  with the terms of the Streamlined Sales and Use Tax Agreement

24  authorized under s. 213.256, if the seller was not registered

25  with the Department of Revenue in the 12-month period

26  preceding the effective date of participation in the agreement

27  by this state.

28         (a)  The amnesty precludes assessment for uncollected

29  or unpaid sales or use tax together with penalty or interest

30  for sales made during the period the seller was not registered

31  with the Department of Revenue, if registration occurs within

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 1  12 months after the effective date of this state's

 2  participation in the agreement.

 3         (b)  The amnesty is not available to a seller with

 4  respect to any matter or matters for which the seller received

 5  notice of the commencement of an audit and which audit is not

 6  yet finally resolved, including any related administrative and

 7  judicial processes.

 8         (c)  The amnesty is not available for sales or use

 9  taxes already paid or remitted to the state or to taxes

10  collected by the seller.

11         (d)  The amnesty is fully effective, absent the

12  seller's fraud or intentional misrepresentation of a material

13  fact, as long as the seller continues registration and

14  continues payment or collection and remittance of applicable

15  sales or use taxes for at least 36 months.

16         (e)  The amnesty is applicable only to sales or use

17  taxes due from a seller in its capacity as a seller and not to

18  sales or use taxes due from a seller in its capacity as a

19  buyer.

20         Section 13.  Subsections (1) and (7) of section

21  213.256, Florida Statutes, are amended, present subsections

22  (8), (9), and (10) of that section are renumbered as

23  subsections (11), (12), and (13), respectively, and new

24  subsections (8), (9), (10), and (14) are added to that section

25  to read:

26         213.256  Simplified Sales and Use Tax Administration

27  Act.--

28         (1)  As used in ss. 213.256 and 213.2567 this section,

29  the term:

30         (a)  "Department" means the Department of Revenue.

31  

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 1         (b)  "Agent" means a person appointed by a seller to

 2  represent the seller before the member states.

 3         (c)(b)  "Agreement" means the Streamlined Sales and Use

 4  Tax Agreement as amended and adopted on November 12, 2002

 5  January 27, 2001, by the Executive Committee of the National

 6  Conference of State Legislatures.

 7         (d)(c)  "Certified automated system" means software

 8  certified jointly by the states that are signatories to the

 9  agreement to calculate the tax imposed by each jurisdiction on

10  a transaction, determine the amount of tax to remit to the

11  appropriate state, and maintain a record of the transaction.

12         (e)(d)  "Certified service provider" means an agent

13  certified under jointly by the states that are signatories to

14  the agreement to perform all of the seller's sales tax

15  functions other than the seller's obligation to remit tax on

16  its own purchases.

17         (f)  "Model 1 seller" means a seller that has selected

18  a certified service provider as its agent to perform all the

19  seller's sales and use tax functions other than the seller's

20  obligation to remit tax on its own purchases.

21         (g)  "Model 2 seller" means a seller that has selected

22  a certified automated system to perform part of its sales and

23  use tax functions, but retains responsibility for remitting

24  the tax.

25         (h)  "Model 3 seller" means a seller that has sales in

26  at least five member states, has total annual sales revenue of

27  at least $500 million, has a proprietary system that

28  calculates the amount of tax due each jurisdiction, and has

29  entered into a performance agreement with the member states

30  which establishes a tax performance standard for the seller.

31  

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 1  As used in this subsection, a seller includes an affiliated

 2  group of sellers using the same proprietary system.

 3         (i)(e)  "Person" means an individual, trust, estate,

 4  fiduciary, partnership, limited liability company, limited

 5  liability partnership, corporation, or any other legal entity.

 6         (j)  "Registered under this agreement" means

 7  registration by a seller with the member states under the

 8  central registration system.

 9         (k)(f)  "Sales tax" means the tax levied under chapter

10  212.

11         (l)(g)  "Seller" means any person making sales, leases,

12  or rentals of personal property or services.

13         (m)(h)  "State" means any state of the United States

14  and the District of Columbia.

15         (n)(i)  "Use tax" means the tax levied under chapter

16  212.

17         (7)(a)  The agreement authorized by this act binds and

18  inures only to the benefit of this state and the other member

19  states. No person, other than a member state, is an intended

20  beneficiary of the agreement. Any benefit to a person other

21  than a state is established by the laws of this state and of

22  other member states and not by the terms of the agreement.

23         (b)  Consistent with paragraph (a), no person has any

24  cause of action or defense under the agreement or by virtue of

25  this state's approval of the agreement. No person may

26  challenge, in any action brought under any provision of law,

27  any action or inaction by any department, agency, or other

28  instrumentality of this state, or of any political subdivision

29  of this state, on the ground that the action or inaction is

30  inconsistent with the agreement.

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 1         (c)  No law of this state, or the application thereof,

 2  may be declared invalid as to any person or circumstance on

 3  the ground that the provision or application is inconsistent

 4  with the agreement.

 5         (d)  The determinations pertaining to the agreement

 6  authorized by this act which are made by the member states are

 7  final when rendered and are not subject to any protest,

 8  appeal, or review.

 9         (8)  Authority to administer the agreement authorized

10  under this act shall rest with the governing board comprised

11  of representatives of each member state. Each member state may

12  appoint up to four representatives to the governing board.

13  This state shall be represented by three delegates, one

14  appointed by the President of the Senate, one appointed by the

15  Speaker of the House of Representatives, and the executive

16  director of the department or his or her designee.

17         (9)  With respect to each member state, the agreement

18  authorized by this act shall continue in full force and effect

19  until a member state withdraws its membership or is expelled.

20  A member state's withdrawal or expulsion is not effective

21  until the first day of a calendar quarter after a minimum of

22  60 days' notice. A member state shall submit notice of its

23  intent to withdraw from the agreement to the governing board

24  and the chief executive of each member state's tax agency. The

25  member state shall provide public notice of its intent to

26  withdraw and post its notice of intent to withdraw from the

27  agreement to the governing board and the chief executive of

28  each member state's tax agency. The member state shall provide

29  public notice of its intent to withdraw and post its notice of

30  intent to withdraw on its web site. The withdrawal by or

31  expulsion of a state does not affect the validity of the

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 1  agreement among other member states. A state that withdraws or

 2  is expelled from the agreement remains liable for its share of

 3  any financial or contractual obligations that were incurred by

 4  the governing board before the effective date of that state's

 5  withdrawal or expulsion. The appropriate share of any

 6  financial or contractual obligation shall be determined by the

 7  state and the governing board in good faith based on the

 8  relative benefits received and burdens incurred by the

 9  parties.

10         (10)  A member state that is found to be out of

11  compliance with the agreement authorized by this act may be

12  imposed with sanctions, which include expulsion or other

13  penalties as determined by the governing board.

14         (14)  Each member state shall annually recertify that

15  such state is in compliance with the agreement authorized

16  under this act. Each member state shall make a recertification

17  to the governing board on or before August 1 of each year

18  after the year of the state's entry. In its annual

19  recertification, the state shall include any changes in its

20  statutes, rules or regulations, or other authorities that

21  could affect its compliance with the terms of the agreement.

22  The recertification shall be signed by the executive director

23  of the department. A member state that cannot recertify its

24  compliance with the agreement shall submit a statement of

25  noncompliance to the governing board. The statement of

26  noncompliance shall include any action or decision that takes

27  such state out of compliance with the agreement and the steps

28  it will take to return to compliance. Each member state shall

29  post its annual recertification or statement of noncompliance

30  on that state's web site.

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 1         Section 14.  Section 213.2567, Florida Statutes, is

 2  created to read:

 3         213.2567  Simplified Sales and Use Tax registration,

 4  certification, liability, audit.--

 5         (1)  A seller that registers pursuant to the agreement

 6  agrees to collect and remit sales and use taxes for all

 7  taxable sales into the member states, including member states

 8  joining after the seller's registration. Withdrawal or

 9  revocation of a member state shall not relieve a seller of its

10  responsibility to remit taxes previously or subsequently

11  collected on behalf of the state.

12         (a)  When registering, the seller may select a model 1,

13  model 2, or model 3 method of remittance or other method

14  allowed by state law to remit the taxes collected.

15         (b)  A seller may be registered by an agent. Such

16  appointment shall be in writing and submitted to a member

17  state.

18         (2)(a)  A certified service provider is the agent of a

19  model 1 seller with whom the certified service provider has

20  contracted for the collection and remittance of sales and use

21  taxes. As the model 1 seller's agent, the certified service

22  provider is liable for sales and use tax due each member state

23  on all sales transactions it processes for the model 1 seller

24  except as set out in paragraph (b).

25         (b)  A model 1 seller is not liable to the state for

26  sales or use tax due on transactions processed by the

27  certified service provider unless the model 1 seller has

28  misrepresented the type of items it sells or has committed

29  fraud. In the absence of probable cause to believe that the

30  model 1 seller has committed fraud or made a material

31  misrepresentation, the model 1 seller is not subject to audit

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 1  on the transactions processed by the certified service

 2  provider. A model 1 seller is subject to audit for

 3  transactions that have not been processed by the certified

 4  service provider. The member states acting jointly may perform

 5  a system check of the model 1 seller and review the model 1

 6  seller's procedures to determine if the certified service

 7  provider's system is functioning properly and to determine the

 8  extent to which the model 1 seller's transactions are being

 9  processed by the certified service provider.

10         (3)  A person that provides a certified automated

11  system is responsible for the proper functioning of that

12  system and is liable to the state for underpayments of tax

13  attributable to errors in the functioning of the certified

14  automated system. A model 2 seller that uses a certified

15  automated system remains responsible and is liable to the

16  state for reporting and remitting tax.

17         (4)  A model 3 seller is liable for the failure of the

18  proprietary system to meet the performance standard.

19         (5)  The governing board may certify a person as a

20  certified service provider if the person meets all of the

21  following requirements:

22         (a)  The person uses a certified automated system;

23         (b)  The person integrates its certified automated

24  system with the system of a seller for whom the person

25  collects tax so that the tax due on a sale is determined at

26  the time of the sale;

27         (c)  The person agrees to remit the taxes it collects

28  at the time and in the manner specified by the member states;

29         (d)  The person agrees to file returns on behalf of the

30  sellers for whom it collects tax;

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 1         (e)  The person agrees to protect the privacy of tax

 2  information it obtains in accordance with s. 213.053; and

 3         (f)  The person enters into a contract with the member

 4  states and agrees to comply with the terms of the contract.

 5         (6)  The governing board may certify a software program

 6  as a certified automated system if the governing board

 7  determines that the program meets all of the following

 8  requirements:

 9         (a)  The program determines the applicable state and

10  local sales and use tax rate for a transaction in accordance

11  with s. 212.06(3) and (4);

12         (b)  The program determines whether or not an item is

13  exempt from tax;

14         (c)  The program determines the amount of tax to be

15  remitted for each taxpayer for a reporting period;

16         (d)  The program can generate reports and returns as

17  required by the governing board; and

18         (e)  The program meets any other requirement set by the

19  governing board.

20         (7)  The governing board may establish one or more

21  sales tax performance standards for model 3 sellers that meet

22  the eligibility criteria set by the governing board and that

23  developed a proprietary system to determine the amount of

24  sales and use tax due on transactions.

25         (8)  Disclosure of information necessary under this

26  section must be pursuant to a written agreement between the

27  executive director of the department or his or her designee

28  and the certified service provider. The certified service

29  provider is bound by the same requirements of confidentiality

30  as the department. Breach of confidentiality is a misdemeanor

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 1  of the first degree, punishable as provided in s. 775.082 or

 2  775.083.

 3         Section 15.  Paragraph (c) of subsection (2) and

 4  paragraph (c) of subsection (3) of section 212.055, Florida

 5  Statutes, are amended to read:

 6         212.055  Discretionary sales surtaxes; legislative

 7  intent; authorization and use of proceeds.--It is the

 8  legislative intent that any authorization for imposition of a

 9  discretionary sales surtax shall be published in the Florida

10  Statutes as a subsection of this section, irrespective of the

11  duration of the levy.  Each enactment shall specify the types

12  of counties authorized to levy; the rate or rates which may be

13  imposed; the maximum length of time the surtax may be imposed,

14  if any; the procedure which must be followed to secure voter

15  approval, if required; the purpose for which the proceeds may

16  be expended; and such other requirements as the Legislature

17  may provide.  Taxable transactions and administrative

18  procedures shall be as provided in s. 212.054.

19         (2)  LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.--

20         (c)  Pursuant to s. 212.054(6) s. 212.054(4), the

21  proceeds of the surtax levied under this subsection shall be

22  distributed to the county and the municipalities within such

23  county in which the surtax was collected, according to:

24         1.  An interlocal agreement between the county

25  governing authority and the governing bodies of the

26  municipalities representing a majority of the county's

27  municipal population, which agreement may include a school

28  district with the consent of the county governing authority

29  and the governing bodies of the municipalities representing a

30  majority of the county's municipal population; or

31  

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 1         2.  If there is no interlocal agreement, according to

 2  the formula provided in s. 218.62.

 3  

 4  Any change in the distribution formula must take effect on the

 5  first day of any month that begins at least 60 days after

 6  written notification of that change has been made to the

 7  department.

 8         (3)  SMALL COUNTY SURTAX.--

 9         (c)  Pursuant to s. 212.054(6) s. 212.054(4), the

10  proceeds of the surtax levied under this subsection shall be

11  distributed to the county and the municipalities within the

12  county in which the surtax was collected, according to:

13         1.  An interlocal agreement between the county

14  governing authority and the governing bodies of the

15  municipalities representing a majority of the county's

16  municipal population, which agreement may include a school

17  district with the consent of the county governing authority

18  and the governing bodies of the municipalities representing a

19  majority of the county's municipal population; or

20         2.  If there is no interlocal agreement, according to

21  the formula provided in s. 218.62.

22  

23  Any change in the distribution formula shall take effect on

24  the first day of any month that begins at least 60 days after

25  written notification of that change has been made to the

26  department.

27         Section 16.  Subsection (6) of section 212.0596,

28  Florida Statutes, is repealed.

29         Section 17.  It is the intent of the Legislature to

30  further amend chapter 212, Florida Statutes, to make the

31  changes necessary to be in compliance with the provisions of

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 1  the Streamlined Sales and Use Tax Agreement which take effect

 2  on December 31, 2005, and to address the prohibition on

 3  multiple state rates in a revenue-neutral manner.

 4         Section 18.  Emergency rules.--The executive director

 5  of the Department of Revenue is authorized, and all conditions

 6  are deemed met, to adopt emergency rules, under sections

 7  120.536(1) and 120.54(4), Florida Statutes, to implement this

 8  act. Notwithstanding any other provision of law, such

 9  emergency rules shall remain effective for 6 months after the

10  date of adoption and may be renewed during the pendency of

11  procedures to adopt rules addressing the subject of the

12  emergency rules.

13         Section 19.  This act shall take effect January 1,

14  2004.

15  

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                      Senate Bill CS/SB 1776

18                                 

19  
    1.   Changes the date that the rate of a local option surtax
20       may be changed from July 1 to April 1.

21  2.   Clarifies the definition of prescriptions to continue
         current tax exemption for prescriptions written by
22       physicians licensed in another jurisdiction.

23  3.   Simplifies the process for refunds of taxes.

24  

25  

26  

27  

28  

29  

30  

31  

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