Senate Bill sb1908

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    Florida Senate - 2003                                  SB 1908

    By Senator Atwater





    25-664A-03                                          See HB 409

  1                      A bill to be entitled

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

  3         other transactions; amending s. 212.08, F.S.;

  4         providing an exemption for tangible personal

  5         property sold to a contractor employed directly

  6         by or as an agent of the United States

  7         Government or state or local government when

  8         such property will become part of a public K-12

  9         school owned by the governmental entity, if

10         specified conditions are met; providing duties

11         of such governmental entities, contractors, and

12         sellers with respect to documentation and

13         recordkeeping; providing for application of

14         penalties; providing an effective date.

15  

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

17  

18         Section 1.  Subsection (6) of section 212.08, Florida

19  Statutes, is amended, and subsection (18) is added to that

20  section, to read:

21         212.08  Sales, rental, use, consumption, distribution,

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

23  the rental, the use, the consumption, the distribution, and

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

25  following are hereby specifically exempt from the tax imposed

26  by this chapter.

27         (6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are

28  also exempt from the tax imposed by this chapter sales made to

29  the United States Government, a state, or any county,

30  municipality, or political subdivision of a state when payment

31  is made directly to the dealer by the governmental entity.

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1  This exemption shall not inure to any transaction otherwise

 2  taxable under this chapter when payment is made by a

 3  government employee by any means, including, but not limited

 4  to, cash, check, or credit card when that employee is

 5  subsequently reimbursed by the governmental entity. Unless the

 6  conditions specified in subsection (18) are met, this

 7  exemption does not include sales of tangible personal property

 8  made to contractors employed either directly or as agents of

 9  any such government or political subdivision thereof when such

10  tangible personal property goes into or becomes a part of

11  public works owned by such government or political

12  subdivision. A determination whether a particular transaction

13  is properly characterized as an exempt sale to a government

14  entity or a taxable sale to a contractor shall be based on the

15  substance of the transaction rather than the form in which the

16  transaction is cast. The department shall adopt rules that

17  give special consideration to factors that govern the status

18  of the tangible personal property before its affixation to

19  real property. In developing these rules, assumption of the

20  risk of damage or loss is of paramount consideration in the

21  determination. This exemption does not include sales, rental,

22  use, consumption, or storage for use in any political

23  subdivision or municipality in this state of machines and

24  equipment and parts and accessories therefor used in the

25  generation, transmission, or distribution of electrical energy

26  by systems owned and operated by a political subdivision in

27  this state for transmission or distribution expansion.

28  Likewise exempt are charges for services rendered by radio and

29  television stations, including line charges, talent fees, or

30  license fees and charges for films, videotapes, and

31  transcriptions used in producing radio or television

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1  broadcasts. The exemption provided in this subsection does not

 2  include sales, rental, use, consumption, or storage for use in

 3  any political subdivision or municipality in this state of

 4  machines and equipment and parts and accessories therefor used

 5  in providing two-way telecommunications services to the public

 6  for hire by the use of a telecommunications facility, as

 7  defined in s. 364.02(13), and for which a certificate is

 8  required under chapter 364, which facility is owned and

 9  operated by any county, municipality, or other political

10  subdivision of the state. Any immunity of any political

11  subdivision of the state or other entity of local government

12  from taxation of the property used to provide

13  telecommunication services that is taxed as a result of this

14  section is hereby waived. However, the exemption provided in

15  this subsection includes transactions taxable under this

16  chapter which are for use by the operator of a public-use

17  airport, as defined in s. 332.004, in providing such

18  telecommunications services for the airport or its tenants,

19  concessionaires, or licensees, or which are for use by a

20  public hospital for the provision of such telecommunications

21  services.

22         (18)  EXEMPTIONS; PUBLIC K-12 SCHOOL CONSTRUCTION

23  CONTRACTOR PURCHASES.--

24         (a)  Sales of tangible personal property made to

25  contractors employed directly by or as agents of the United

26  States Government, a state, a county, a municipality, or a

27  political subdivision of a state for public K-12 school

28  construction are exempt if the following conditions are met:

29         1.  At the time of such sale, the governmental entity

30  or political subdivision holds a current consumer's

31  certificate of exemption from the department.

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1         2.  The tangible personal property purchased by the

 2  contractor will go into or become part of a public K-12 school

 3  owned by the governmental entity or political subdivision.

 4  Tangible personal property purchased and used by a contractor

 5  in the course of performing a contract that does not become

 6  part of the public K-12 school is not exempt under this

 7  subsection.

 8         3.  The governmental entity or political subdivision

 9  bears the economic burden of the cost of the tangible personal

10  property, either through direct reimbursement of the cost to

11  the contractor under the contract or inclusion of the cost in

12  the contractor's price for performance of the contract.

13         4.  The governmental entity or political subdivision,

14  general contractor, or a subcontractor presents to the seller

15  prior to or at the time of a purchase:

16         a.  A copy of a current, valid Florida consumer's

17  certificate of exemption held by the governmental entity or

18  political subdivision.

19         b.  A signed and dated statement of an officer or

20  authorized employee of the governmental entity or political

21  subdivision that identifies a specific public K-12 school

22  project and names the contractor or contractors engaged to

23  perform work on the identified project who have been

24  authorized to make exempt purchases of materials for the

25  project.

26         c.  A signed and dated statement of the purchasing

27  contractor certifying that all purchases made by that

28  contractor and identified at the time of purchase to the

29  public K-12 school project specified in the statement of the

30  governmental entity or political subdivision will be for

31  incorporation into that public K-12 school project.

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1  

 2  A seller may rely on a single copy of the governmental

 3  entity's or political subdivision's consumer's certificate of

 4  exemption and a single signed and dated statement from the

 5  governmental entity or political subdivision to make sales to

 6  any contractor named on that statement so long as the other

 7  certification and recordkeeping requirements of this

 8  subsection are also satisfied. A seller may rely on a single

 9  signed statement of a purchasing contractor to make sales to

10  that contractor for the public K-12 school project specified

11  in that statement so long as the other certification and

12  recordkeeping requirements of this subsection are also

13  satisfied.

14         5.  The records of the seller contain documentation for

15  each exempt purchase as follows:

16         a.  A purchase order from the contractor specifically

17  identifying, by description and quantity, the tangible

18  personal property being purchased for incorporation by the

19  contractor into a specifically named public K-12 school

20  project; or

21         b.  Electronic or other records of the seller that

22  establish that the purchased tangible personal property,

23  identified by description and quantity, was charged by a

24  contractor who has provided a statement as described in

25  subparagraph 4. to an account to which only purchases for the

26  public K-12 school project specified in that statement are

27  charged.

28         6.  The statements of the governmental entity or

29  political subdivision and of the purchasing contractor

30  described in this paragraph must be dated and contain the

31  following printed or typed declaration at the end of the

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1  statement and immediately above the signature of the public

 2  officer, employee, or contractor: "Under penalties of perjury

 3  as provided in s. 92.525, Florida Statutes, I declare that I

 4  have read the foregoing statement and that the facts stated in

 5  it are true."

 6         7.  The seller verifies that a purchasing contractor is

 7  named in the statement from the governmental entity or

 8  political subdivision and that the project identified in the

 9  statement of the contractor is the same project as that

10  identified in the statement of the governmental entity or

11  political subdivision before the exemption is granted as to

12  any purchase.

13         (b)1.  The seller shall maintain in its records the

14  certificate, statements, and other records described in

15  paragraph (a) to document the exempt status of any sale for

16  the period of time during which the department may conduct an

17  audit of the seller's books and records. A dealer may, through

18  the informal protest provided for in s. 213.21 and the rules

19  of the department, provide the department with evidence of the

20  exempt status of a sale. A consumer's certificate of exemption

21  executed by a governmental entity or political subdivision

22  which was registered with the department at the time of sale,

23  a statement of the governmental entity or political

24  subdivision as described in sub-subparagraph (a)4.b. which had

25  been issued and signed prior to or on the date of the sale for

26  which exemption was claimed, and a purchasing contractor's

27  statement as described in sub-subparagraph (a)4.c. from a

28  contractor that could have issued such statement at the time

29  of the sale shall be accepted by the department when submitted

30  during the protest period, but may not be accepted in any

31  proceeding under chapter 120 or any circuit court action

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    Florida Senate - 2003                                  SB 1908
    25-664A-03                                          See HB 409




 1  instituted under chapter 72. No exemption shall be recognized

 2  for any purchase by a contractor prior to the date on which a

 3  governmental entity or political subdivision has issued a

 4  signed and dated statement authorizing that contractor to make

 5  exempt purchases for a specified public K-12 school project.

 6         2.  A contractor that claims exemption under this

 7  subsection shall maintain records to establish that the

 8  materials purchased were actually incorporated into the public

 9  K-12 school project described in the contractor's statement.

10  The contractor must accrue and remit use tax on any items

11  purchased exempt under this subsection that are not

12  incorporated into the public K-12 school project, unless such

13  items are transferred to the governmental entity or political

14  subdivision or returned to the seller for a credit to the

15  contractor' s account. The contractor shall maintain records

16  to document any such transfers or returns.

17         3.  Any person who fraudulently, for the purpose of

18  evading tax, issues a written statement for use in claiming an

19  exemption under this subsection for materials that do not

20  satisfy the requirements for such exemption shall, in addition

21  to being liable for the payment of the tax due on such

22  materials, be subject to the penalties provided in s. 212.085.

23         Section 2.  This act shall take effect upon becoming a

24  law.

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