HB 1157

1
A bill to be entitled
2An act relating to the tax on sales, use, and other
3transactions; amending s. 212.08, F.S.; providing an
4exemption for tangible personal property sold to a
5contractor employed directly by or as an agent of the
6United States Government or state or local government when
7such property will become part of a public or charter K-12
8school owned or chartered by the governmental entity, if
9specified conditions are met; providing duties of such
10governmental entities, contractors, and sellers with
11respect to documentation and recordkeeping; providing for
12application of penalties; providing an effective date.
13
14Be It Enacted by the Legislature of the State of Florida:
15
16     Section 1.  Subsection (6) of section 212.08, Florida
17Statutes, is amended, and subsection (18) is added to said
18section, to read:
19     212.08  Sales, rental, use, consumption, distribution, and
20storage tax; specified exemptions.--The sale at retail, the
21rental, the use, the consumption, the distribution, and the
22storage to be used or consumed in this state of the following
23are hereby specifically exempt from the tax imposed by this
24chapter.
25     (6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are also
26exempt from the tax imposed by this chapter sales made to the
27United States Government, a state, or any county, municipality,
28or political subdivision of a state when payment is made
29directly to the dealer by the governmental entity. This
30exemption shall not inure to any transaction otherwise taxable
31under this chapter when payment is made by a government employee
32by any means, including, but not limited to, cash, check, or
33credit card when that employee is subsequently reimbursed by the
34governmental entity. Unless the conditions specified in
35subsection (18) are met, this exemption does not include sales
36of tangible personal property made to contractors employed
37either directly or as agents of any such government or political
38subdivision thereof when such tangible personal property goes
39into or becomes a part of public works owned by such government
40or political subdivision. A determination whether a particular
41transaction is properly characterized as an exempt sale to a
42government entity or a taxable sale to a contractor shall be
43based on the substance of the transaction rather than the form
44in which the transaction is cast. The department shall adopt
45rules that give special consideration to factors that govern the
46status of the tangible personal property before its affixation
47to real property. In developing these rules, assumption of the
48risk of damage or loss is of paramount consideration in the
49determination. This exemption does not include sales, rental,
50use, consumption, or storage for use in any political
51subdivision or municipality in this state of machines and
52equipment and parts and accessories therefor used in the
53generation, transmission, or distribution of electrical energy
54by systems owned and operated by a political subdivision in this
55state for transmission or distribution expansion. Likewise
56exempt are charges for services rendered by radio and television
57stations, including line charges, talent fees, or license fees
58and charges for films, videotapes, and transcriptions used in
59producing radio or television broadcasts. The exemption provided
60in this subsection does not include sales, rental, use,
61consumption, or storage for use in any political subdivision or
62municipality in this state of machines and equipment and parts
63and accessories therefor used in providing two-way
64telecommunications services to the public for hire by the use of
65a telecommunications facility, as defined in s. 364.02(14), and
66for which a certificate is required under chapter 364, which
67facility is owned and operated by any county, municipality, or
68other political subdivision of the state.  Any immunity of any
69political subdivision of the state or other entity of local
70government from taxation of the property used to provide
71telecommunication services that is taxed as a result of this
72section is hereby waived.  However, the exemption provided in
73this subsection includes transactions taxable under this chapter
74which are for use by the operator of a public-use airport, as
75defined in s. 332.004, in providing such telecommunications
76services for the airport or its tenants, concessionaires, or
77licensees, or which are for use by a public hospital for the
78provision of such telecommunications services.
79     (18)  EXEMPTIONS; PUBLIC OR CHARTER K-12 SCHOOL
80CONSTRUCTION CONTRACTOR PURCHASES.--
81     (a)  Sales of tangible personal property made to
82contractors employed directly by or as agents of the United
83States Government, a state, a county, a municipality, or a
84political subdivision of a state for public or charter K-12
85school construction are exempt if the following conditions are
86met:
87     1.  At the time of the sale, the governmental entity or
88political subdivision holds a current consumer's certificate of
89exemption from the department.
90     2.  The tangible personal property purchased by the
91contractor will go into or become part of a public or charter K-
9212 school owned or chartered by the governmental entity or
93political subdivision. Tangible personal property purchased and
94used by a contractor in the course of performing a contract
95which does not become part of the public or charter K-12 school
96is not exempt under this subsection.
97     3.  The governmental entity or political subdivision bears
98the economic burden of the cost of the tangible personal
99property, either through direct reimbursement of the cost to the
100contractor under the contract or by inclusion of the cost in the
101contractor's price for performance of the contract.
102     4.  The governmental entity or political subdivision,
103general contractor, or a subcontractor presents to the seller
104before or at the time of a purchase:
105     a.  A copy of a current, valid Florida consumer's
106certificate of exemption held by the governmental entity or
107political subdivision.
108     b.  A signed and dated statement of an officer or
109authorized employee of the governmental entity or political
110subdivision which identifies a specific public or charter K-12
111school project and names the contractor or contractors engaged
112to perform work on the identified project who have been
113authorized to make exempt purchases of materials for the
114project.
115     c.  A signed and dated statement of the purchasing
116contractor certifying that all purchases made by that contractor
117and identified at the time of purchase to the public or charter
118K-12 school project specified in the statement of the
119governmental entity or political subdivision will be for
120incorporation into that public or charter K-12 school project.
121
122A seller may rely on a single copy of the governmental entity's
123or political subdivision's consumer's certificate of exemption
124and a single signed and dated statement from the governmental
125entity or political subdivision to make sales to any contractor
126named on that statement if the other certification and
127recordkeeping requirements of this subsection have also been
128satisfied. A seller may rely on a single signed statement of a
129purchasing contractor to make sales to that contractor for the
130public or charter K-12 school project specified in that
131statement if the other certification and recordkeeping
132requirements of this subsection have also been satisfied.
133     5.  The records of the seller contain documentation for
134each exempt purchase as follows:
135     a.  A purchase order from the contractor specifically
136identifying, by description and quantity, the tangible personal
137property being purchased for incorporation by the contractor
138into a specifically named public or charter K-12 school project;
139or
140     b.  Electronic or other records of the seller which
141establish that the purchased tangible personal property,
142identified by description and quantity, was charged by a
143contractor who has provided a statement as described in
144subparagraph 4. to an account to which only purchases for the
145public or charter K-12 school project specified in that
146statement are charged.
147     6.  The statements of the governmental entity or political
148subdivision and of the purchasing contractor described in this
149paragraph must be dated and must contain the following printed
150or typed declaration at the end of the statement and immediately
151above the signature of the public officer, employee, or
152contractor: "Under penalties of perjury as provided in s.
15392.525, Florida Statutes, I declare that I have read the
154foregoing statement and that the facts stated in it are true."
155     7.  The seller verifies that a purchasing contractor is
156named in the statement from the governmental entity or political
157subdivision and that the project identified in the statement of
158the contractor is the same project as that identified in the
159statement of the governmental entity or political subdivision
160before the exemption is granted as to any purchase.
161     (b)1.  The seller shall maintain in its records the
162certificate, statements, and other records described in
163paragraph (a) to document the exempt status of any sale for the
164period of time during which the department may conduct an audit
165of the seller's books and records. A dealer may, through the
166informal protest provided for in s. 213.21 and the rules of the
167department, provide the department with evidence of the exempt
168status of a sale. A consumer's certificate of exemption executed
169by a governmental entity or political subdivision which was
170registered with the department at the time of sale, a statement
171of the governmental entity or political subdivision as described
172in sub-subparagraph (a)4.b. which had been issued and signed
173before or on the date of the sale for which exemption was
174claimed, and a purchasing contractor's statement as described in
175sub-subparagraph (a)4.c. from a contractor that could have
176issued such statement at the time of the sale shall be accepted
177by the department when submitted during the protest period but
178may not be accepted in any proceeding under chapter 120 or any
179circuit court action instituted under chapter 72. A purchase
180does not qualify for exemption under this subsection if a
181contractor made the purchase before the date on which a
182governmental entity or political subdivision issued a signed and
183dated statement authorizing that contractor to make exempt
184purchases for a specified public or charter K-12 school project.
185     2.  A contractor that claims an exemption under this
186subsection shall maintain records to establish that the
187materials purchased were actually incorporated into the public
188or charter K-12 school project described in the contractor's
189statement. The contractor must accrue and remit use tax on any
190items purchased as exempt under this subsection which are not
191incorporated into the public or charter K-12 school project,
192unless the items are transferred to the governmental entity or
193political subdivision or returned to the seller for a credit to
194the contractor's account. The contractor shall maintain records
195to document any such transfers or returns.
196     3.  Any person who fraudulently, for the purpose of evading
197tax, issues a written statement for use in claiming an exemption
198under this subsection for materials that do not satisfy the
199requirements for the exemption is, in addition to being liable
200for the payment of the tax due on the materials, subject to the
201penalties 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.