HB 0409 2003
1	A bill to be entitled
2	An act relating to the tax on sales, use, and other
3	transactions; amending s. 212.08, F.S.; providing an
4	exemption for tangible personal property sold to a
5	contractor employed directly by or as an agent of the
6	United States Government or state or local government when
7	such property will become part of a public K-12 school
8	owned by the governmental entity, if specified conditions
9	are met; providing duties of such governmental entities,
10	contractors, and sellers with respect to documentation and
11	recordkeeping; providing for application of penalties;
12	providing an effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1. Subsection (6) of section 212.08, Florida
17	Statutes, is amended, and subsection (18) is added to said
18	section, to read:
19	212.08 Sales, rental, use, consumption, distribution, and
20	storage tax; specified exemptions.--The sale at retail, the
21	rental, the use, the consumption, the distribution, and the
22	storage to be used or consumed in this state of the following
23	are hereby specifically exempt from the tax imposed by this
24	chapter.
25	(6) EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are also
26	exempt from the tax imposed by this chapter sales made to the
27	United States Government, a state, or any county, municipality,
28	or political subdivision of a state when payment is made
29	directly to the dealer by the governmental entity. This
30	exemption shall not inure to any transaction otherwise taxable
31	under this chapter when payment is made by a government employee
32	by any means, including, but not limited to, cash, check, or
33	credit card when that employee is subsequently reimbursed by the
34	governmental entity.Unless the conditions specified in
35	subsection (18) are met,this exemption does not include sales
36	of tangible personal property made to contractors employed
37	either directly or as agents of any such government or political
38	subdivision thereof when such tangible personal property goes
39	into or becomes a part of public works owned by such government
40	or political subdivision. A determination whether a particular
41	transaction is properly characterized as an exempt sale to a
42	government entity or a taxable sale to a contractor shall be
43	based on the substance of the transaction rather than the form
44	in which the transaction is cast. The department shall adopt
45	rules that give special consideration to factors that govern the
46	status of the tangible personal property before its affixation
47	to real property. In developing these rules, assumption of the
48	risk of damage or loss is of paramount consideration in the
49	determination. This exemption does not include sales, rental,
50	use, consumption, or storage for use in any political
51	subdivision or municipality in this state of machines and
52	equipment and parts and accessories therefor used in the
53	generation, transmission, or distribution of electrical energy
54	by systems owned and operated by a political subdivision in this
55	state for transmission or distribution expansion. Likewise
56	exempt are charges for services rendered by radio and television
57	stations, including line charges, talent fees, or license fees
58	and charges for films, videotapes, and transcriptions used in
59	producing radio or television broadcasts. The exemption provided
60	in this subsection does not include sales, rental, use,
61	consumption, or storage for use in any political subdivision or
62	municipality in this state of machines and equipment and parts
63	and accessories therefor used in providing two-way
64	telecommunications services to the public for hire by the use of
65	a telecommunications facility, as defined in s. 364.02(13), and
66	for which a certificate is required under chapter 364, which
67	facility is owned and operated by any county, municipality, or
68	other political subdivision of the state. Any immunity of any
69	political subdivision of the state or other entity of local
70	government from taxation of the property used to provide
71	telecommunication services that is taxed as a result of this
72	section is hereby waived. However, the exemption provided in
73	this subsection includes transactions taxable under this chapter
74	which are for use by the operator of a public-use airport, as
75	defined in s. 332.004, in providing such telecommunications
76	services for the airport or its tenants, concessionaires, or
77	licensees, or which are for use by a public hospital for the
78	provision of such telecommunications services.
79	(18) EXEMPTIONS; PUBLIC K-12 SCHOOL CONSTRUCTION
80	CONTRACTOR PURCHASES.--
81	(a) Sales of tangible personal property made to
82	contractors employed directly by or as agents of the United
83	States Government, a state, a county, a municipality, or a
84	political subdivision of a state for public K-12 school
85	construction are exempt if the following conditions are met:
86	1. At the time of such sale, the governmental entity or
87	political subdivision holds a current consumer's certificate of
88	exemption from the department.
89	2. The tangible personal property purchased by the
90	contractor will go into or become part of a public K-12 school
91	owned by the governmental entity or political subdivision.
92	Tangible personal property purchased and used by a contractor in
93	the course of performing a contract that does not become part of
94	the public K-12 school is not exempt under this subsection.
95	3. The governmental entity or political subdivision bears
96	the economic burden of the cost of the tangible personal
97	property, either through direct reimbursement of the cost to the
98	contractor under the contract or inclusion of the cost in the
99	contractor's price for performance of the contract.
100	4. The governmental entity or political subdivision,
101	general contractor, or a subcontractor presents to the seller
102	prior to or at the time of a purchase:
103	a. A copy of a current, valid Florida consumer's
104	certificate of exemption held by the governmental entity or
105	political subdivision.
106	b. A signed and dated statement of an officer or
107	authorized employee of the governmental entity or political
108	subdivision that identifies a specific public K-12 school
109	project and names the contractor or contractors engaged to
110	perform work on the identified project who have been authorized
111	to make exempt purchases of materials for the project.
112	c. A signed and dated statement of the purchasing
113	contractor certifying that all purchases made by that contractor
114	and identified at the time of purchase to the public K-12 school
115	project specified in the statement of the governmental entity or
116	political subdivision will be for incorporation into that public
117	K-12 school project.
118
119	A seller may rely on a single copy of the governmental entity's
120	or political subdivision's consumer's certificate of exemption
121	and a single signed and dated statement from the governmental
122	entity or political subdivision to make sales to any contractor
123	named on that statement so long as the other certification and
124	recordkeeping requirements of this subsection are also
125	satisfied. A seller may rely on a single signed statement of a
126	purchasing contractor to make sales to that contractor for the
127	public K-12 school project specified in that statement so long
128	as the other certification and recordkeeping requirements of
129	this subsection are also satisfied.
130	5. The records of the seller contain documentation for
131	each exempt purchase as follows:
132	a. A purchase order from the contractor specifically
133	identifying, by description and quantity, the tangible personal
134	property being purchased for incorporation by the contractor
135	into a specifically named public K-12 school project; or
136	b. Electronic or other records of the seller that
137	establish that the purchased tangible personal property,
138	identified by description and quantity, was charged by a
139	contractor who has provided a statement as described in
140	subparagraph 4. to an account to which only purchases for the
141	public K-12 school project specified in that statement are
142	charged.
143	6. The statements of the governmental entity or political
144	subdivision and of the purchasing contractor described in this
145	paragraph must be dated and contain the following printed or
146	typed declaration at the end of the statement and immediately
147	above the signature of the public officer, employee, or
148	contractor: "Under penalties of perjury as provided in s.
149	92.525, Florida Statutes, I declare that I have read the
150	foregoing statement and that the facts stated in it are true."
151	7. The seller verifies that a purchasing contractor is
152	named in the statement from the governmental entity or political
153	subdivision and that the project identified in the statement of
154	the contractor is the same project as that identified in the
155	statement of the governmental entity or political subdivision
156	before the exemption is granted as to any purchase.
157	(b)1. The seller shall maintain in its records the
158	certificate, statements, and other records described in
159	paragraph (a) to document the exempt status of any sale for the
160	period of time during which the department may conduct an audit
161	of the seller's books and records. A dealer may, through the
162	informal protest provided for in s. 213.21 and the rules of the
163	department, provide the department with evidence of the exempt
164	status of a sale. A consumer's certificate of exemption executed
165	by a governmental entity or political subdivision that was
166	registered with the department at the time of sale, a statement
167	of the governmental entity or political subdivision as described
168	in sub-subparagraph (a)4.b. that had been issued and signed
169	prior to or on the date of the sale for which exemption was
170	claimed, and a purchasing contractor's statement as described in
171	sub-subparagraph (a)4.c. from a contractor that could have
172	issued such statement at the time of the sale shall be accepted
173	by the department when submitted during the protest period, but
174	may not be accepted in any proceeding under chapter 120 or any
175	circuit court action instituted under chapter 72. No exemption
176	shall be recognized for any purchase by a contractor prior to
177	the date on which a governmental entity or political subdivision
178	has issued a signed and dated statement authorizing that
179	contractor to make exempt purchases for a specified public K-12
180	school project.
181	2. A contractor that claims exemption under this
182	subsection shall maintain records to establish that the
183	materials purchased were actually incorporated into the public
184	K-12 school project described in the contractor's statement. The
185	contractor must accrue and remit use tax on any items purchased
186	exempt under this subsection that are not incorporated into the
187	public K-12 school project, unless such items are transferred to
188	the governmental entity or political subdivision or returned to
189	the seller for a credit to the contractor's account. The
190	contractor shall maintain records to document any such transfers
191	or returns.
192	3. Any person who fraudulently, for the purpose of evading
193	tax, issues a written statement for use in claiming an exemption
194	under this subsection for materials that do not satisfy the
195	requirements for such exemption shall, in addition to being
196	liable for the payment of the tax due on such materials, be
197	subject to the penalties provided in s. 212.085.
198	Section 2. This act shall take effect upon becoming a law.
199