Senate Bill sb1072
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
By Senator Campbell
32-675A-04
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
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 must 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
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 or to extend the
10 agreement does not preclude an agreement from being a lease or
11 rental. This definition shall be used for purposes of the
12 sales and use tax 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 if 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. A provision of tangible personal property along
31 with an operator for a fixed or indeterminate period of time.
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 A condition of this exclusion is that the operator is
2 necessary for the equipment to perform as designed. For the
3 purpose of this sub-subparagraph, an operator must do more
4 than maintain, inspect, or set up the tangible personal
5 property. the leasing or rental of tangible personal property
6 and the possession or use thereof by the lessee or rentee for
7 a consideration, without transfer of the title of such
8 property, except as 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
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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; or
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; or
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
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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, which 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 January 1, 2005, 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:
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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.--
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 that is a modular home or manufactured home that is not a
12 mobile home includes an item of tangible personal property, 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 a lease or rental, of any motor vehicle that does
22 not 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.
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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.
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
22
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 that would otherwise be due solely as
17 a result of the seller or certified service provider relying
18 on an incorrect taxing jurisdiction assignment made in the
19 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
23
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 occurs 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 a 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
24
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 a lease or rental in
22 paragraph (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
26
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 a 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 a lease or rental in paragraph (d). The term
20 "transportation equipment" means:
21 1. Locomotives and rail cars 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
27
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
28
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 records as they exist at the time of the consummation of the
2 sale.
3 3. The MPU exemption form remains in effect for all
4 future sales by the seller to the purchaser, except as to the
5 subsequent sale's specific apportionment that is governed by
6 the principle of subparagraph 2. and the facts existing at the
7 time of the sale, until the MPU exemption form is revoked in
8 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 a
18 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 remains in effect
24 for all future sales of direct mail by the seller to the
25 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
29
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 for which the seller has collected tax pursuant to the
2 delivery 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 a
5 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
30
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
31
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 which 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
32
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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. As used in this
22 subparagraph, the term "prepared food" means food sold in a
23 heated state or heated by the seller; two or more food
24 ingredients mixed or combined by the seller for sale as a
25 single item; or food sold with eating utensils provided by the
26 seller, including plates, knives, forks, spoons, glasses,
27 cups, napkins, or straws. A plate does not include a container
28 or packaging used to transport the food. Prepared food does
29 not include food that is only cut, repackaged, or pasteurized
30 by the seller and eggs, fish, meat, poultry, and foods
31 containing these raw animal foods requiring cooking by the
33
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 consumer as recommended by the Food and Drug Administration in
2 chapter 3, part 401.11 of its food code so as to prevent
3 food-borne illnesses. "Prepared food," for purposes of this
4 subparagraph, includes sandwiches sold for immediate
5 consumption, and a combination of hot and cold food items or
6 components where a single price has been established for the
7 combination and the food products are sold in such
8 combination, such as a meal; a specialty dish or serving; a
9 sandwich or pizza; an ice cream cone, sundae, or banana split;
10 or food sold in an unheated state by weight or volume as a
11 single item, including cold components or side items.
12 2.7. To soft drinks, which include, but are not
13 limited to, any nonalcoholic beverage, any preparation or
14 beverage commonly referred to as a "soft drink," or any
15 noncarbonated drink made from milk derivatives or tea, when
16 sold in cans or similar containers. The term "soft drinks"
17 means nonalcoholic beverages that contain natural or
18 artificial sweeteners. Soft drinks do not include beverages
19 that contain milk or milk products, soy, rice, or similar milk
20 substitutes, or greater than 50 percent of vegetable or fruit
21 juice by volume.
22 8. To ice cream, frozen yogurt, and similar frozen
23 dairy or nondairy products in cones, small cups, or pints,
24 popsicles, frozen fruit bars, or other novelty items, whether
25 or not sold separately.
26 9. To food prepared, whether on or off the premises,
27 and sold for immediate consumption. This does not apply to
28 food prepared off the premises and sold in the original sealed
29 container, or the slicing of products into smaller portions.
30
31
34
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 3.10. When the food and food ingredients products are
2 sold through a vending machine, pushcart, motor vehicle, or
3 any other form of vehicle.
4 4.11. To candy and any similar product regarded as
5 candy or confection, based on its normal use, as indicated on
6 the label or advertising thereof. The term "candy" means a
7 preparation of sugar, honey, or other natural or artificial
8 sweeteners in combination with chocolate, fruits, nuts, or
9 other ingredients or flavorings in the form of bars, drops, or
10 pieces. Candy does not include any preparation that contains
11 flour and requires no refrigeration.
12 12. To bakery products sold by bakeries, pastry shops,
13 or like establishments that have eating facilities, except
14 when sold for consumption off the seller's premises.
15 13. When food products are served, prepared, or sold
16 in or by restaurants, lunch counters, cafeterias, hotels,
17 taverns, or other like places of business.
18 5. To tobacco.
19 (d) As used in this subsection, the term:
20 1. "For consumption off the seller's premises" means
21 that the food or drink is intended by the customer to be
22 consumed at a place away from the dealer's premises.
23 2. "For consumption on the seller's premises" means
24 that the food or drink sold may be immediately consumed on the
25 premises where the dealer conducts his or her business. In
26 determining whether an item of food is sold for immediate
27 consumption, there shall be considered the customary
28 consumption practices prevailing at the selling facility.
29 3. "Premises" shall be construed broadly, and means,
30 but is not limited to, the lobby, aisle, or auditorium of a
31 theater; the seating, aisle, or parking area of an arena,
35
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 rink, or stadium; or the parking area of a drive-in or outdoor
2 theater. The premises of a caterer with respect to catered
3 meals or beverages shall be the place where such meals or
4 beverages are served.
5 4. "Hot Prepared food products" means those products,
6 items, or components which have been prepared for sale in a
7 heated condition and which are sold at any temperature that is
8 higher than the air temperature of the room or place where
9 they are sold. "Hot prepared food products," for the purposes
10 of this subsection, includes a combination of hot and cold
11 food items or components where a single price has been
12 established for the combination and the food products are sold
13 in such combination, such as a hot meal, a hot specialty dish
14 or serving, or a hot sandwich or hot pizza, including cold
15 components or side items.
16 (d)(e)1. Food or drinks not exempt under paragraphs
17 (a), (b), (c), and (d) shall be exempt, notwithstanding those
18 paragraphs, when purchased with food coupons or Special
19 Supplemental Food Program for Women, Infants, and Children
20 vouchers issued under authority of federal law.
21 2. This paragraph is effective only while federal law
22 prohibits a state's participation in the federal food coupon
23 program or Special Supplemental Food Program for Women,
24 Infants, and Children if there is an official determination
25 that state or local sales taxes are collected within that
26 state on purchases of food or drinks with such coupons.
27 3. This paragraph shall not apply to any food or
28 drinks on which federal law shall permit sales taxes without
29 penalty, such as termination of the state's participation.
30 (e) "Dietary supplements" that are sold as prepared
31 food are not exempt.
36
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (2) EXEMPTIONS; MEDICAL.--
2 (a) There shall be exempt from the tax imposed by this
3 chapter:
4 1. Any drug;
5 2. Durable medical equipment, mobility enhancing
6 equipment, or prosthetic device any medical products and
7 supplies or medicine dispensed according to an individual
8 prescription or prescriptions written by a prescriber
9 authorized by law to prescribe medicinal drugs;
10 3. Hypodermic needles; hypodermic syringes;
11 4. Chemical compounds and test kits used for the
12 diagnosis or treatment of human disease, illness, or injury
13 intended for one-time use;
14 5. Over-the-counter drugs and common household
15 remedies recommended and generally sold for internal or
16 external use in the cure, mitigation, treatment, or prevention
17 of illness or disease in human beings, but not including
18 grooming and hygiene products;
19 6. Bandaids, gauze, bandages, adhesive tape;
20 7. Hearing aids;
21 8. Dental prosthesis; or
22 9. Funerals.
23
24 Funeral directors shall pay tax on all tangible personal
25 property used by them in their business. cosmetics or toilet
26 articles, notwithstanding the presence of medicinal
27 ingredients therein, according to a list prescribed and
28 approved by the Department of Health, which list shall be
29 certified to the Department of Revenue from time to time and
30 included in the rules promulgated by the Department of
31 Revenue. There shall also be exempt from the tax imposed by
37
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 this chapter artificial eyes and limbs; orthopedic shoes;
2 prescription eyeglasses and items incidental thereto or which
3 become a part thereof; dentures; hearing aids; crutches;
4 prosthetic and orthopedic appliances; and funerals. In
5 addition, any items intended for one-time use which transfer
6 essential optical characteristics to contact lenses shall be
7 exempt from the tax imposed by this chapter; however, this
8 exemption shall apply only after $100,000 of the tax imposed
9 by this chapter on such items has been paid in any calendar
10 year by a taxpayer who claims the exemption in such year.
11 Funeral directors shall pay tax on all tangible personal
12 property used by them in their business.
13 (b) For the purposes of this subsection, the term:
14 1. "Drug" means a compound, substance, or preparation,
15 and any component of a compound, substance, or preparation,
16 other than food and food ingredients, dietary supplements, and
17 alcoholic beverages, which is:
18 a. Recognized in the official United States
19 Pharmacopoeia, official Homeopathic Pharmacopoeia of the
20 United States, or official National Formulary, or the
21 supplement to any of them;
22 b. Intended for use in the diagnosis, cure,
23 mitigation, treatment, or prevention of disease; or
24 c. Intended to affect the structure or any function of
25 the body.
26 2. "Durable medical equipment" means equipment,
27 including repair and replacement parts to such equipment, but
28 excluding mobility-enhancing equipment, which can withstand
29 repeated use, is primarily and customarily used to serve a
30 medical purpose, generally is not useful to a person in the
31
38
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 absence of illness or injury, and is not worn on or in the
2 body.
3 3. "Mobility-enhancing equipment" means equipment,
4 including repair and replacement parts to such equipment, but
5 excluding durable medical equipment, which:
6 a. Is primarily and customarily used to provide or
7 increase the ability to move from one place to another and
8 which is appropriate for use either in a home or a motor
9 vehicle;
10 b. Is not generally used by persons with normal
11 mobility; and
12 c. Does not include any motor vehicle or any equipment
13 on a motor vehicle normally provided by a motor vehicle
14 manufacturer.
15 4. "Prosthetic device" means a replacement,
16 corrective, or supportive device, including repair or
17 replacement parts to such equipment, other than a hearing aid
18 or a dental prosthesis, which is worn on or in the body to:
19 a. Artificially replace a missing portion of the body;
20 b. Prevent or correct physical deformity or
21 malfunction; or
22 c. Support a weak or deformed portion of the body.
23 5. "Grooming and hygiene products" are soaps and
24 cleaning solutions, shampoo, toothpaste, mouthwash,
25 antiperspirants, and suntan lotions and screens, regardless of
26 whether the items meet the definition of over-the-counter
27 drugs.
28 6. "Over-the-counter drug" means a drug the packaging
29 for which contains a label that identifies the product as a
30 drug as required by 21 C.F.R. s. 201.66. The over-the-counter
31 drug label includes a "drug facts" panel or a statement of the
39
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 active ingredients with a list of those ingredients contained
2 in the compound, substance, or preparation. "Prosthetic and
3 orthopedic appliances" means any apparatus, instrument,
4 device, or equipment used to replace or substitute for any
5 missing part of the body, to alleviate the malfunction of any
6 part of the body, or to assist any disabled person in leading
7 a normal life by facilitating such person's mobility. Such
8 apparatus, instrument, device, or equipment shall be exempted
9 according to an individual prescription or prescriptions
10 written by a physician licensed under chapter 458, chapter
11 459, chapter 460, chapter 461, or chapter 466, or according to
12 a list prescribed and approved by the Department of Health,
13 which list shall be certified to the Department of Revenue
14 from time to time and included in the rules promulgated by the
15 Department of Revenue.
16 2. "Cosmetics" means articles intended to be rubbed,
17 poured, sprinkled, or sprayed on, introduced into, or
18 otherwise applied to the human body for cleansing,
19 beautifying, promoting attractiveness, or altering the
20 appearance and also means articles intended for use as a
21 compound of any such articles, including, but not limited to,
22 cold creams, suntan lotions, makeup, and body lotions.
23 3. "Toilet articles" means any article advertised or
24 held out for sale for grooming purposes and those articles
25 that are customarily used for grooming purposes, regardless of
26 the name by which they may be known, including, but not
27 limited to, soap, toothpaste, hair spray, shaving products,
28 colognes, perfumes, shampoo, deodorant, and mouthwash.
29 7.4. "Prescription" means an order, formula, or recipe
30 issued in any form of oral, written, electronic, or other
31 means of transmission by a duly licensed practitioner
40
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 authorized by chapter 458, chapter 459, chapter 460, chapter
2 461, or chapter 466. The term also includes an orally
3 transmitted order by the lawfully designated agent of such
4 practitioner. The term also includes an order written or
5 transmitted by a practitioner licensed to practice in a
6 jurisdiction other than this state, but only if the pharmacist
7 called upon to dispense such order determines, in the exercise
8 of his or her professional judgment, that the order is valid
9 and necessary for the treatment of a chronic or recurrent
10 illness. includes any order for drugs or medicinal supplies
11 written or transmitted by any means of communication by a duly
12 licensed practitioner authorized by the laws of the state to
13 prescribe such drugs or medicinal supplies and intended to be
14 dispensed by a pharmacist. The term also includes an orally
15 transmitted order by the lawfully designated agent of such
16 practitioner. The term also includes an order written or
17 transmitted by a practitioner licensed to practice in a
18 jurisdiction other than this state, but only if the pharmacist
19 called upon to dispense such order determines, in the exercise
20 of his or her professional judgment, that the order is valid
21 and necessary for the treatment of a chronic or recurrent
22 illness. The term also includes a pharmacist's order for a
23 product selected from the formulary created pursuant to s.
24 465.186. A prescription may be retained in written form, or
25 the pharmacist may cause it to be recorded in a data
26 processing system, provided that such order can be produced in
27 printed form upon lawful request.
28 (c) Chlorine shall not be exempt from the tax imposed
29 by this chapter when used for the treatment of water in
30 swimming pools.
31 (d) Lithotripters are exempt.
41
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (d)(e) Human organs are exempt.
2 (f) Sales of drugs to or by physicians, dentists,
3 veterinarians, and hospitals in connection with medical
4 treatment are exempt.
5 (g) Medical products and supplies used in the cure,
6 mitigation, alleviation, prevention, or treatment of injury,
7 disease, or incapacity which are temporarily or permanently
8 incorporated into a patient or client by a practitioner of the
9 healing arts licensed in the state are exempt.
10 (h) The purchase by a veterinarian of commonly
11 recognized substances possessing curative or remedial
12 properties which are ordered and dispensed as treatment for a
13 diagnosed health disorder by or on the prescription of a duly
14 licensed veterinarian, and which are applied to or consumed by
15 animals for alleviation of pain or the cure or prevention of
16 sickness, disease, or suffering are exempt. Also exempt are
17 the purchase by a veterinarian of antiseptics, absorbent
18 cotton, gauze for bandages, lotions, vitamins, and worm
19 remedies.
20 (i) X-ray opaques, also known as opaque drugs and
21 radiopaque, such as the various opaque dyes and barium
22 sulphate, when used in connection with medical X rays for
23 treatment of bodies of humans and animals, are exempt.
24 (e)(j) Parts, special attachments, special lettering,
25 and other like items that are added to or attached to tangible
26 personal property so that a handicapped person can use them
27 are exempt when such items are purchased by a person pursuant
28 to an individual prescription.
29 (f)(k) This subsection shall be strictly construed and
30 enforced.
31
42
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 Section 7. Section 212.095, Florida Statutes, is
2 amended to read:
3 212.095 Refunds.--
4 (1) No exemption granted on a refund basis pursuant to
5 this chapter is authorized except as provided in this section.
6 (2)(a) No person may secure a refund under this
7 chapter unless such person is the holder of an unrevoked
8 refund permit issued by the department before the purchase for
9 which a refund is sought, which permit shall be numbered and
10 issued annually.
11 (b) To procure a permit, a person must file with the
12 department an application, on forms furnished by the
13 department, stating that he or she is entitled to a refund
14 according to the provisions of this chapter and that he or she
15 intends to file an application for refund for the current
16 calendar year, and must furnish the department such other
17 information as the department requests.
18 (c) No person may in any event be allowed a refund
19 unless he or she has filed the application provided for in
20 paragraph (b) with the department. A permit shall be effective
21 on the date issued by the department.
22 (d) If an applicant for a refund permit has violated
23 any provision of this section or any regulation pursuant
24 hereto, or has been convicted of bribery, theft, or false
25 swearing within the period of 5 years preceding the
26 application, or if the department has evidence of the
27 financial irresponsibility of the applicant, the department
28 may require the applicant to execute a corporate surety bond
29 of $1,000 to be approved by the department, conditioned upon
30 the payment of all taxes, penalties, and fines for which such
31 applicant may become liable under this chapter.
43
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (2)(3)(a) When a sale is made to a person who claims
2 to be entitled to a refund under this section, the seller
3 shall make out a sales invoice, which shall contain the
4 following information:
5 1. The name and business address of the purchaser.
6 2. A description of the item or services sold.
7 3. The date on which the purchase was made.
8 4. The price and amount of tax paid for the item or
9 services.
10 5. The name and place of business of the seller at
11 which the sale was made.
12 6. The refund permit number of the purchaser.
13 (b) The sales invoice shall be retained by the
14 purchaser for attachment to his or her application for a
15 refund, as a part thereof. No refund will be allowed unless
16 the seller has executed such an invoice and unless proof of
17 payment of the taxes for which the refund is claimed is
18 attached. The department may refuse to grant a refund if the
19 invoice is incomplete and fails to contain the full
20 information required in this subsection.
21 (c) No person may execute a sales invoice, as
22 described in paragraph (a), except a dealer duly registered
23 pursuant to this chapter, or an authorized agent thereof.
24 (3)(4)(a) No refund may be authorized unless a sworn
25 application therefor containing the information required in
26 this section is filed with the department not later than 30
27 days immediately following the quarter for which the refund is
28 claimed. When a claim is filed after such 30 days and a
29 justified excuse for late filing is presented to the
30 department and the last preceding claim was filed on time,
31 such late filing may be accepted through 60 days following the
44
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 quarter. No refund will be authorized unless the amount due
2 is for $5 or more in any quarter and unless application is
3 made upon forms prescribed by the department.
4 (b) Claims shall be filed and paid for each calendar
5 quarter. The department shall deduct a fee of $2 for each
6 claim, which fee shall be deposited in the General Revenue
7 Fund.
8 (c) Refund application forms shall include at a
9 minimum the following information:
10 1. The name and address of the person claiming the
11 refund.
12 2. The refund permit number of such person.
13 2.3. The location at which the items or services for
14 which a refund is claimed are used.
15 3.4. A description of each such item or service and
16 the purpose for which such item or service was acquired.
17 4.5. Copies of the sales invoices of items or services
18 for which a refund is being claimed.
19 (4)(5) The right to receive any refund under the
20 provisions of this section is not assignable, except to the
21 executor or administrator, or to the receiver, trustee in
22 bankruptcy, or assignee in an insolvency proceeding, of the
23 person entitled to the refund.
24 (5)(6)(a) Each registered dealer shall, in accordance
25 with the requirements of the department, keep at his or her
26 principal place of business in this state or at the location
27 where the sale is made a complete record or duplicate sales
28 tickets of all items or services sold by the registered dealer
29 for which a refund provided in this section may be claimed,
30 which records shall contain the information required in
31 paragraph (2) (3)(a).
45
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (b) Every person applying for to whom a refund permit
2 has been issued under this section shall, in accordance with
3 the requirements of the department, keep at his or her
4 residence or principal place of business in this state a
5 record of each purchase for which a refund is claimed,
6 including the information required in paragraph (2) (3)(a).
7 (c) The records required to be kept under this
8 subsection shall at all reasonable hours be subject to audit
9 or inspection by the department or by any person duly
10 authorized by it. Such records shall be preserved and may not
11 be destroyed until 3 years after the date the item to which
12 they relate was sold or purchased.
13 (d) The department shall keep a permanent record of
14 the amount of refund claimed and paid to each claimant. Such
15 records shall be open to public inspection.
16 (6)(7) Agents of the department are authorized to go
17 upon the premises of any refund applicant permitholder, or
18 duly authorized agent thereof, to make an inspection to
19 ascertain any matter connected with the operation of this
20 section or the enforcement hereof. However, no agent may enter
21 the dwelling of any person without the consent of the occupant
22 or authority from a court of competent jurisdiction.
23 (7)(8) If any taxes are refunded erroneously, the
24 department shall advise the payee by registered mail of the
25 erroneous refund. If the payee fails to reimburse the state
26 within 15 days after the receipt of the letter, an action may
27 be instituted by the department against such payee in the
28 circuit court, and the department shall recover from the payee
29 the amount of the erroneous refund plus a penalty of 25
30 percent.
31 (8)(9) No person shall:
46
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (a) Knowingly make a false or fraudulent statement in
2 an application for a refund permit or in an application for a
3 refund of any taxes under this section;
4 (b) Fraudulently obtain a refund of such taxes; or
5 (c) Knowingly aid or assist in making any such false
6 or fraudulent statement or claim.
7 (10) The refund permit of any person who violates any
8 provision of this section shall be revoked by the department
9 and may not be reissued until 2 years have elapsed from the
10 date of such revocation. The refund permit of any person who
11 violates any other provision of this chapter may be suspended
12 by the department for any period, in its discretion, not
13 exceeding 6 months.
14 (9)(11) Refund permits and refund application forms
15 shall include instructions for dealers and purchasers as to
16 the relevant requirements of this section.
17 Section 8. Section 212.094, Florida Statutes, is
18 created to read:
19 212.094 Purchaser requests for refunds from dealers.--
20 (1) If a purchaser seeks a refund of or credit from a
21 dealer for a tax collected under this chapter by that dealer,
22 the purchaser must submit a written request for the refund or
23 credit to the dealer in accordance with this section. The
24 request must contain all the information necessary for the
25 dealer to determine the validity of the purchaser's request.
26 (2) The purchaser may not take any other action
27 against the dealer with respect to the requested refund or
28 credit until the dealer has had 60 days following receipt of a
29 completed request in which to respond.
30 (3) This section does not change the law regarding
31 standing to claim a refund.
47
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 Section 9. Subsection (3) of section 212.17, Florida
2 Statutes, is amended to read:
3 212.17 Credits for returned goods, rentals, or
4 admissions; goods acquired for dealer's own use and
5 subsequently resold; additional powers of department.--
6 (3) A dealer who has paid the tax imposed by this
7 chapter on tangible personal property or services may take a
8 credit or obtain a refund for any tax paid by the dealer on
9 the unpaid balance due on worthless accounts within 12 months
10 following the month in which the bad debt has been charged off
11 for federal income tax purposes. A dealer who has paid the tax
12 imposed by this chapter on tangible personal property or
13 services and who is not required to file federal income tax
14 returns may take a credit or obtain a refund for any tax paid
15 by the dealer on the unpaid balance due on worthless accounts
16 within 12 months following the month in which the bad debt is
17 written off as uncollectible in the dealer's books and records
18 and would be eligible for a bad debt deduction for federal
19 income tax purposes if the dealer was required to file a
20 federal income tax return.
21 (a) A dealer that is taking a credit or obtaining a
22 refund on worthless accounts shall base the bad debt recovery
23 calculation in accordance with 26 U.S.C. s. 166.
24 (b) Notwithstanding paragraph (a), the amount
25 calculated pursuant to 26 U.S.C. s. 166 shall be adjusted to
26 exclude financing charges or interest; sales or use taxes
27 charged on the purchase price; uncollectible amounts on
28 property that remain in the possession of the seller until the
29 full purchase price is paid; expenses incurred in attempting
30 to collect any debt; and repossessed property.
31
48
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (c) When the amount of bad debt exceeds the amount of
2 taxable sales for the period during which the bad debt is
3 written off, a refund claim may be filed in accordance with
4 the timing provisions of s. 215.26(2), except that the statute
5 of limitations for filing the refund claim shall be measured
6 from the due date of the return on which the bad debt could
7 first be claimed.
8 (d) If any accounts so charged off for which a credit
9 or refund has been obtained are thereafter in whole or in part
10 paid to the dealer, the amount so paid shall be included in
11 the first return filed after such collection and the tax paid
12 accordingly.
13 (e) Where filing responsibilities have been assumed by
14 a certified service provider, the certified service provider
15 shall claim, on behalf of the seller, any bad debt allowance
16 provided by this section. The certified service provider must
17 credit or refund to the seller the full amount of any bad debt
18 allowance or refund received.
19 (f) For the purposes of reporting a payment received
20 on a previously claimed bad debt, any payments made on a debt
21 or account are applied first proportionally to the taxable
22 price of the property or service and the sales tax thereon,
23 and secondly to interest, service charges, and any other
24 charges.
25 (g) In situations in which the books and records of
26 the party claiming the bad debt allowance support an
27 allocation of the bad debts among states that are members of
28 the Streamlined Sales and Use Tax Agreement, the allocation is
29 permitted among those states.
30 Section 10. Section 213.052, Florida Statutes, is
31 created to read:
49
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 213.052 Notice of state rate changes.--
2 (1) A sales or use tax rate change imposed under
3 chapter 212 is effective on January 1, April 1, July 1, or
4 October 1. The Department of Revenue shall provide notice of
5 such rate change to all affected sellers 90 days before the
6 effective date of the rate change.
7 (2) Failure of a seller to receive notice does not
8 relieve the seller of its obligation to collect sales or use
9 tax.
10 Section 11. Section 213.0521, Florida Statutes, is
11 created to read:
12 213.0521 Effective date of state rate changes.--The
13 effective date for services covering a period starting before
14 and ending after the statutory effective date shall be as
15 follows:
16 (1) For a rate increase, the new rate shall apply to
17 the first billing period starting on or after the effective
18 date.
19 (2) For a rate decrease, the new rate shall apply to
20 bills rendered on or after the effective date.
21 Section 12. Subsection (11) is added to section
22 213.21, Florida Statutes, to read:
23 213.21 Informal conferences; compromises.--
24 (11) Amnesty shall be provided for uncollected or
25 unpaid sales or use tax to a seller who registers to pay or to
26 collect and remit applicable sales or use tax in accordance
27 with the terms of the Streamlined Sales and Use Tax Agreement
28 authorized under s. 213.256, if the seller was not registered
29 with the Department of Revenue in the 12-month period
30 preceding the effective date of participation in the agreement
31 by this state.
50
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (a) The amnesty precludes assessment for uncollected
2 or unpaid sales or use tax together with penalty or interest
3 for sales made during the period the seller was not registered
4 with the Department of Revenue, if registration occurs within
5 12 months after the effective date of this state's
6 participation in the agreement.
7 (b) The amnesty is not available to a seller with
8 respect to any matter or matters for which the seller received
9 notice of the commencement of an audit and which audit is not
10 yet finally resolved, including any related administrative and
11 judicial processes.
12 (c) The amnesty is not available for sales or use
13 taxes already paid or remitted to the state or to taxes
14 collected by the seller.
15 (d) The amnesty is fully effective, absent the
16 seller's fraud or intentional misrepresentation of a material
17 fact, as long as the seller continues registration and
18 continues payment or collection and remittance of applicable
19 sales or use taxes for at least 36 months.
20 (e) The amnesty is applicable only to sales or use
21 taxes due from a seller in its capacity as a seller and not to
22 sales or use taxes due from a seller in its capacity as a
23 buyer.
24 Section 13. Subsections (1) and (7) of section
25 213.256, Florida Statutes, are amended, present subsections
26 (8), (9), and (10) of that section are renumbered as
27 subsections (11), (12), and (13), respectively, and new
28 subsections (8), (9), (10), and (14) are added to that
29 section, to read:
30 213.256 Simplified Sales and Use Tax Administration
31 Act.--
51
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (1) As used in ss. 213.256 and 213.2567 this section,
2 the term:
3 (a) "Department" means the Department of Revenue.
4 (b) "Agent" means a person appointed by a seller to
5 represent the seller before the member states.
6 (c)(b) "Agreement" means the Streamlined Sales and Use
7 Tax Agreement as amended and adopted on November 12, 2002
8 January 27, 2001, by the Executive Committee of the National
9 Conference of State Legislatures.
10 (d)(c) "Certified automated system" means software
11 certified jointly by the states that are signatories to the
12 agreement to calculate the tax imposed by each jurisdiction on
13 a transaction, determine the amount of tax to remit to the
14 appropriate state, and maintain a record of the transaction.
15 (e)(d) "Certified service provider" means an agent
16 certified under jointly by the states that are signatories to
17 the agreement to perform all of the seller's sales tax
18 functions other than the seller's obligation to remit tax on
19 its own purchases.
20 (f) "Model 1 seller" means a seller that has selected
21 a certified service provider as its agent to perform all the
22 seller's sales and use tax functions other than the seller's
23 obligation to remit tax on its own purchases.
24 (g) "Model 2 seller" means a seller that has selected
25 a certified automated system to perform part of its sales and
26 use tax functions, but retains responsibility for remitting
27 the tax.
28 (h) "Model 3 seller" means a seller that has sales in
29 at least five member states, has total annual sales revenue of
30 at least $500 million, has a proprietary system that
31 calculates the amount of tax due each jurisdiction, and has
52
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 entered into a performance agreement with the member states
2 which establishes a tax performance standard for the seller.
3 As used in this subsection, a seller includes an affiliated
4 group of sellers using the same proprietary system.
5 (i)(e) "Person" means an individual, trust, estate,
6 fiduciary, partnership, limited liability company, limited
7 liability partnership, corporation, or any other legal entity.
8 (j) "Registered under this agreement" means
9 registration by a seller with the member states under the
10 central registration system.
11 (k)(f) "Sales tax" means the tax levied under chapter
12 212.
13 (l)(g) "Seller" means any person making sales, leases,
14 or rentals of personal property or services.
15 (m)(h) "State" means any state of the United States
16 and the District of Columbia.
17 (n)(i) "Use tax" means the tax levied under chapter
18 212.
19 (7)(a) The agreement authorized by this act binds and
20 inures only to the benefit of this state and the other member
21 states. No person, other than a member state, is an intended
22 beneficiary of the agreement. Any benefit to a person other
23 than a state is established by the laws of this state and of
24 other member states and not by the terms of the agreement.
25 (b) Consistent with paragraph (a), no person has any
26 cause of action or defense under the agreement or by virtue of
27 this state's approval of the agreement. No person may
28 challenge, in any action brought under any provision of law,
29 any action or inaction by any department, agency, or other
30 instrumentality of this state, or of any political subdivision
31
53
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 of this state, on the ground that the action or inaction is
2 inconsistent with the agreement.
3 (c) No law of this state, or the application thereof,
4 may be declared invalid as to any person or circumstance on
5 the ground that the provision or application is inconsistent
6 with the agreement.
7 (d) The determinations pertaining to the agreement
8 authorized by this act which are made by the member states are
9 final when rendered and are not subject to any protest,
10 appeal, or review.
11 (8) Authority to administer the agreement authorized
12 under this act shall rest with the governing board comprised
13 of representatives of each member state. Each member state may
14 appoint up to four representatives to the governing board.
15 This state shall be represented by three delegates, one
16 appointed by the President of the Senate, one appointed by the
17 Speaker of the House of Representatives, and the executive
18 director of the department or his or her designee.
19 (9) With respect to each member state, the agreement
20 authorized by this act shall continue in full force and effect
21 until a member state withdraws its membership or is expelled.
22 A member state's withdrawal or expulsion is not effective
23 until the first day of a calendar quarter after a minimum of
24 60 days' notice. A member state shall submit notice of its
25 intent to withdraw from the agreement to the governing board
26 and the chief executive of each member state's tax agency. The
27 member state shall provide public notice of its intent to
28 withdraw and post its notice of intent to withdraw from the
29 agreement to the governing board and the chief executive of
30 each member state's tax agency. The member state shall provide
31 public notice of its intent to withdraw and post its notice of
54
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 intent to withdraw on its Internet website. The withdrawal by
2 or expulsion of a state does not affect the validity of the
3 agreement among other member states. A state that withdraws or
4 is expelled from the agreement remains liable for its share of
5 any financial or contractual obligations that were incurred by
6 the governing board before the effective date of that state's
7 withdrawal or expulsion. The appropriate share of any
8 financial or contractual obligation shall be determined by the
9 state and the governing board in good faith based on the
10 relative benefits received and burdens incurred by the
11 parties.
12 (10) A member state that is found to be out of
13 compliance with the agreement authorized by this act may be
14 imposed with sanctions, which include expulsion or other
15 penalties as determined by the governing board.
16 (14) Each member state shall annually recertify that
17 such state is in compliance with the agreement authorized
18 under this act. Each member state shall make a recertification
19 to the governing board on or before August 1 of each year
20 after the year of the state's entry. In its annual
21 recertification, the state shall include any changes in its
22 statutes, rules, or regulations or other authorities that
23 could affect its compliance with the terms of the agreement.
24 The recertification shall be signed by the executive director
25 of the department. A member state that cannot recertify its
26 compliance with the agreement shall submit a statement of
27 noncompliance to the governing board. The statement of
28 noncompliance shall include any action or decision that takes
29 such state out of compliance with the agreement and the steps
30 it will take to return to compliance. Each member state shall
31
55
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 post its annual recertification or statement of noncompliance
2 on that state's Internet website.
3 Section 14. Section 213.2567, Florida Statutes, is
4 created to read:
5 213.2567 Simplified Sales and Use Tax registration,
6 certification, liability, audit.--
7 (1) A seller that registers pursuant to the agreement
8 agrees to collect and remit sales and use taxes for all
9 taxable sales into the member states, including member states
10 joining after the seller's registration. Withdrawal or
11 revocation of a member state does not relieve a seller of its
12 responsibility to remit taxes previously or subsequently
13 collected on behalf of the state.
14 (a) When registering, the seller may select a model 1,
15 model 2, or model 3 method of remittance or other method
16 allowed by state law to remit the taxes collected.
17 (b) A seller may be registered by an agent. Such an
18 appointment must be in writing and submitted to a member
19 state.
20 (2)(a) A certified service provider is the agent of a
21 model 1 seller with whom the certified service provider has
22 contracted for the collection and remittance of sales and use
23 taxes. As the model 1 seller's agent, the certified service
24 provider is liable for sales and use tax due each member state
25 on all sales transactions it processes for the model 1 seller,
26 except as set out in paragraph (b).
27 (b) A model 1 seller is not liable to the state for
28 sales or use tax due on transactions processed by the
29 certified service provider unless the model 1 seller has
30 misrepresented the type of items it sells or has committed
31 fraud. In the absence of probable cause to believe that the
56
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 model 1 seller has committed fraud or made a material
2 misrepresentation, the model 1 seller is not subject to audit
3 on the transactions processed by the certified service
4 provider. A model 1 seller is subject to audit for
5 transactions that have not been processed by the certified
6 service provider. The member states acting jointly may perform
7 a system check of the model 1 seller and review the model 1
8 seller's procedures to determine if the certified service
9 provider's system is functioning properly and to determine the
10 extent to which the model 1 seller's transactions are being
11 processed by the certified service provider.
12 (3) A person that provides a certified automated
13 system is responsible for the proper functioning of that
14 system and is liable to the state for underpayments of tax
15 attributable to errors in the functioning of the certified
16 automated system. A model 2 seller that uses a certified
17 automated system remains responsible and is liable to the
18 state for reporting and remitting tax.
19 (4) A model 3 seller is liable for the failure of the
20 proprietary system to meet the performance standard.
21 (5) The governing board may certify a person as a
22 certified service provider if the person meets all of the
23 following requirements:
24 (a) The person uses a certified automated system;
25 (b) The person integrates its certified automated
26 system with the system of a seller for whom the person
27 collects tax so that the tax due on a sale is determined at
28 the time of the sale;
29 (c) The person agrees to remit the taxes it collects
30 at the time and in the manner specified by the member states;
31
57
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 (d) The person agrees to file returns on behalf of the
2 sellers for whom it collects tax;
3 (e) The person agrees to protect the privacy of tax
4 information it obtains in accordance with s. 213.053; and
5 (f) The person enters into a contract with the member
6 states and agrees to comply with the terms of the contract.
7 (6) The governing board may certify a software program
8 as a certified automated system if the governing board
9 determines that the program meets all of the following
10 requirements:
11 (a) The program determines the applicable state and
12 local sales and use tax rate for a transaction in accordance
13 with s. 212.06(3) and (4);
14 (b) The program determines whether or not an item is
15 exempt from tax;
16 (c) The program determines the amount of tax to be
17 remitted for each taxpayer for a reporting period;
18 (d) The program can generate reports and returns as
19 required by the governing board; and
20 (e) The program meets any other requirement set by the
21 governing board.
22 (7) The governing board may establish one or more
23 sales tax performance standards for model 3 sellers that meet
24 the eligibility criteria set by the governing board and that
25 developed a proprietary system to determine the amount of
26 sales and use tax due on transactions.
27 (8) Disclosure of information necessary under this
28 section must be pursuant to a written agreement between the
29 executive director of the department or his or her designee
30 and the certified service provider. The certified service
31 provider is bound by the same requirements of confidentiality
58
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
1 as the department. Breach of confidentiality is a misdemeanor
2 of the first degree, punishable as provided in s. 775.082 or
3 s. 775.083.
4 Section 15. Paragraph (c) of subsection (2) and
5 paragraph (c) of subsection (3) of section 212.055, Florida
6 Statutes, are amended to read:
7 212.055 Discretionary sales surtaxes; legislative
8 intent; authorization and use of proceeds.--It is the
9 legislative intent that any authorization for imposition of a
10 discretionary sales surtax shall be published in the Florida
11 Statutes as a subsection of this section, irrespective of the
12 duration of the levy. Each enactment shall specify the types
13 of counties authorized to levy; the rate or rates which may be
14 imposed; the maximum length of time the surtax may be imposed,
15 if any; the procedure which must be followed to secure voter
16 approval, if required; the purpose for which the proceeds may
17 be expended; and such other requirements as the Legislature
18 may provide. Taxable transactions and administrative
19 procedures shall be as provided in s. 212.054.
20 (2) LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.--
21 (c) Pursuant to s. 212.054(6) s. 212.054(4), the
22 proceeds of the surtax levied under this subsection shall be
23 distributed to the county and the municipalities within such
24 county in which the surtax was collected, according to:
25 1. An interlocal agreement between the county
26 governing authority and the governing bodies of the
27 municipalities representing a majority of the county's
28 municipal population, which agreement may include a school
29 district with the consent of the county governing authority
30 and the governing bodies of the municipalities representing a
31 majority of the county's municipal population; or
59
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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
60
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2004 SB 1072
32-675A-04
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 2005.
15
16 *****************************************
17 SENATE SUMMARY
18 Revises various provisions relating to sales and use
taxes, including provisions relating to the effective
19 date of changes in tax rates; determining the situs of
taxable transactions; the procedures for refunds of
20 taxes; procedures to be used by sellers, including
sellers' responsibilities under the Streamlined Sales and
21 Use Tax Agreement; credits for bad debts; amnesty for
unpaid or uncollected taxes; and administration of the
22 agreement. (See bill for details.)
23
24
25
26
27
28
29
30
31
61
CODING: Words stricken are deletions; words underlined are additions.