HB 1157

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

CODING: Words stricken are deletions; words underlined are additions.