HB 1237

1	A bill to be entitled
2	An act relating to communications services taxes; amending
3	s. 202.13, F.S.; revising legislative intent; amending s.
4	202.16, F.S.; providing requirements for dealers making
5	certain sales for resale; providing procedures and
6	limitations; providing a definition; providing
7	responsibilities of the Department of Revenue; amending s.
8	202.19, F.S.; revising provisions limiting certain maximum
9	rates; clarifying the inclusion of certain fees and costs
10	in the tax rate; amending s. 202.20, F.S.; deleting
11	certain obsolete tax rate provisions; amending s. 202.21,
12	F.S., to conform; amending s. 202.24, F.S.; including
13	certain fees and costs within a prohibition against public
14	bodies from levying or collecting certain taxes from
15	dealers or purchasers of communications services certain
16	taxes, charges, and fees; specifying certain revisions to
17	law as remedial and clarifying; providing an effective
18	date.
19
20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1.  Subsection (1) of section 202.13, Florida
23	Statutes, is amended to read:
24	202.13  Intent.--
25	(1)  If the operation or imposition of the taxes imposed or
26	administered under this chapter is declared invalid,
27	ineffective, inapplicable, unconstitutional, or void for any
28	reason, chapters 166, 203, 212, and 337, as such chapters
29	existed before January 1, 2000, shall fully apply to the sale,
30	use, or consumption of communications services. If any exemption
31	from the tax imposed or administered under this chapter is
32	declared invalid, ineffective, inapplicable, unconstitutional,
33	or void for any reason, such declaration shall not affect the
34	taxes imposed or administered under this chapter, but such sale,
35	use, or consumption shall be subject to the taxes imposed under
36	this chapter to the same extent as if such exemption never
37	existed.
38	Section 2.  Subsection (2) of section 202.16, Florida
39	Statutes, is amended to read:
40	202.16  Payment.--The taxes imposed or administered under
41	this chapter and chapter 203 shall be collected from all dealers
42	of taxable communications services on the sale at retail in this
43	state of communications services taxable under this chapter and
44	chapter 203. The full amount of the taxes on a credit sale,
45	installment sale, or sale made on any kind of deferred payment
46	plan is due at the moment of the transaction in the same manner
47	as a cash sale.
48	(2)(a)  A sale of communications services that are used as
49	a component part of or integrated into a communications service
50	or prepaid calling arrangement for resale, including, but not
51	limited to, carrier-access charges, interconnection charges paid
52	by providers of mobile communication services or other
53	communication services, charges paid by cable service providers
54	for the transmission of video or other programming by another
55	dealer of communications services, charges for the sale of
56	unbundled network elements, and any other intercompany charges
57	for the use of facilities for providing communications services
58	for resale, must be made in compliance with the rules of the
59	department. Any person who makes a sale for resale which is not
60	in compliance with these rules is liable for any tax, penalty,
61	and interest due for failing to comply, to be calculated
62	pursuant to s. 202.28(2)(a).
63	(b)  Any dealer who makes a sale for resale shall document
64	the exempt nature of the transaction, as established by rules
65	adopted by the department, by retaining a copy of the
66	purchaser's initial or annual resale certificate issued pursuant
67	to s. 202.17(6). In lieu of maintaining a copy of the
68	certificate, a dealer may document, prior to the time of sale,
69	an authorization number provided telephonically or
70	electronically by the department, or by such other means
71	established by rule of the department. The dealer may rely on an
72	initial or annual resale certificate issued pursuant to s.
73	202.17(6), valid at the time of receipt from the purchaser,
74	without seeking additional annual resale certificates from such
75	purchaser, if the dealer makes recurring sales to such purchaser
76	in the normal course of business on a continual basis. For
77	purposes of this paragraph, the term "recurring sales to a
78	purchaser in the normal course of business" means a sale in
79	which the dealer extends credit to the purchaser and records the
80	debt as an account receivable, or in which the dealer sells to a
81	purchaser who has an established cash account, similar to an
82	open credit account. For purposes of this paragraph, purchases
83	are made from a selling dealer on a continual basis if the
84	selling dealer makes, in the normal course of business, sales to
85	the purchaser no less frequently than once in every 12-month
86	period. A dealer may, through the informal protest provided for
87	in s. 213.21 and the rules of the Department of Revenue, provide
88	the department with evidence of the exempt status of a sale.
89	Exemption certificates executed by entities that were exempt at
90	the time of sale, resale certificates provided by purchasers who
91	were active dealers at the time of sale, and verification by the
92	department of a purchaser's active dealer status at the time of
93	sale in lieu of a resale certificate shall be accepted by the
94	department when submitted during the protest period, but may not
95	be accepted in any proceeding under chapter 120 or any circuit
96	court action instituted under chapter 72.
97	Section 3.  Paragraph (c) of subsection (2), paragraph (a)
98	of subsection (3), and subsection (5) of section 202.19, Florida
99	Statutes, are amended to read:
100	202.19  Authorization to impose local communications
101	services tax.--
102	(2)
103	(c)  The maximum rates authorized by paragraphs (a) and (b)
104	do not include the add-ons of up to 0.12 percent for
105	municipalities and charter counties or of up to 0.24 percent for
106	noncharter counties authorized pursuant to s. 337.401, nor do
107	they supersede conversion or emergency rates authorized by s.
108	202.20(1), or emergency rates previously authorized by s.
109	202.20(2) as such provision existed prior to July 1, 2004,
110	202.20 which are in excess of these maximum rates.
111	(3)(a)  The tax authorized under this section includes and
112	is in lieu of any fee or other consideration, including, but not
113	limited to, application fees, transfer fees, siting fees,
114	renewal fees, or claims for related costs, to which the
115	municipality or county is otherwise entitled for granting
116	permission to dealers of communications services, including, but
117	not limited to, providers of cable television services, as
118	authorized in 47 U.S.C. s. 542, to use or occupy its roads or
119	rights-of-way for the placement, construction, and maintenance
120	of poles, wires, towers, and other fixtures used in the
121	provision of communications services.
122	(5)  In addition to the communications services taxes
123	authorized by subsection (1), a discretionary sales surtax that
124	a county or school board has levied under s. 212.055 is imposed
125	as a local communications services tax under this section, and
126	the rate shall be determined in accordance with s. 202.20(2)(3).
127	(a)  Except as otherwise provided in this subsection, each
128	such tax rate shall be applied, in addition to the other tax
129	rates applied under this chapter, to communications services
130	subject to tax under s. 202.12 which:
131	1.  Originate or terminate in this state; and
132	2.  Are charged to a service address in the county.
133	(b)  With respect to private communications services, the
134	tax shall be on the sales price of such services provided within
135	the county, which shall be determined in accordance with the
136	following provisions:
137	1.  Any charge with respect to a channel termination point
138	located within such county;
139	2.  Any charge for the use of a channel between two channel
140	termination points located in such county; and
141	3.  Where channel termination points are located both
142	within and outside of such county:
143	a.  If any segment between two such channel termination
144	points is separately billed, 50 percent of such charge; and
145	b.  If any segment of the circuit is not separately billed,
146	an amount equal to the total charge for such circuit multiplied
147	by a fraction, the numerator of which is the number of channel
148	termination points within such county and the denominator of
149	which is the total number of channel termination points of the
150	circuit.
151	Section 4.  Subsections (2) and (3) of section 202.20,
152	Florida Statutes, are amended to read:
153	202.20  Local communications services tax conversion
154	rates.--
155	(2)(a)1.  With respect to any local taxing jurisdiction,
156	if, for the periods ending December 31, 2001; March 31, 2002;
157	June 30, 2002; or September 30, 2002, the revenues received by
158	that local government from the local communications services tax
159	imposed under subsection (1) are less than the revenues received
160	from the replaced revenue sources for the corresponding 2000-
161	2001 period; plus reasonably anticipated growth in such revenues
162	over the preceding 1-year period, based on the average growth of
163	such revenues over the immediately preceding 5-year period; plus
164	an amount representing the revenues from the replaced revenue
165	sources for the 1-month period that the local taxing
166	jurisdiction was required to forego, the governing authority may
167	adjust the rate of the local communications services tax upward
168	to the extent necessary to generate the entire shortfall in
169	revenues within 1 year after the rate adjustment and by an
170	amount necessary to generate the expected amount of revenue on
171	an ongoing basis.
172	2.  If complete data are not available at the time of
173	determining whether the revenues received by a local government
174	from the local communications services tax imposed under
175	subsection (1) are less than the revenues received from the
176	replaced revenue sources for the corresponding 2000-2001 period,
177	as set forth in subparagraph 1., the local government shall use
178	the best data available for the corresponding 2000-2001 period
179	in making such determination.
180	3.  The adjustment permitted under subparagraph 1. may be
181	made by emergency ordinance or resolution and may be made
182	notwithstanding the maximum rate established under s. 202.19(2)
183	and notwithstanding any schedules or timeframes or any other
184	limitations contained in this chapter. The emergency ordinance
185	or resolution shall specify an effective date for the adjusted
186	rate, which shall be no less than 60 days after the date of
187	adoption of the ordinance or resolution and shall be effective
188	with respect to taxable services included on bills that are
189	dated on the first day of a month subsequent to the expiration
190	of the 60-day period. At the end of 1 year following the
191	effective date of such adjusted rate, the local governing
192	authority shall, as soon as is consistent with s. 202.21, reduce
193	the rate by that portion of the emergency rate which was
194	necessary to recoup the amount of revenues not received prior to
195	the implementation of the emergency rate.
196	4.  If, for the period October 1, 2001, through September
197	30, 2002, the revenues received by a local government from the
198	local communications services tax conversion rate established
199	under subsection (1), adjusted upward for the difference in
200	rates between paragraphs (1)(a) and (b) or any other rate
201	adjustments or base changes, are above the threshold of 10
202	percent more than the revenues received from the replaced
203	revenue sources for the corresponding 2000-2001 period plus
204	reasonably anticipated growth in such revenues over the
205	preceding 1-year period, based on the average growth of such
206	revenues over the immediately preceding 5-year period, the
207	governing authority must adjust the rate of the local
208	communications services tax to the extent necessary to reduce
209	revenues to the threshold by emergency ordinance or resolution
210	within the timeframes established in subparagraph 3. The
211	foregoing rate adjustment requirement shall not apply to a local
212	government that adopts a local communications services tax rate
213	by resolution or ordinance. If complete data are not available
214	at the time of determining whether the revenues exceed the
215	threshold, the local government shall use the best data
216	available for the corresponding 2000-2001 period in making such
217	determination. This subparagraph shall not be construed as
218	establishing a right of action for any person to enforce this
219	subparagraph or challenge a local government's implementation of
220	this subparagraph.
221	(b)  Except as otherwise provided in this subsection,
222	"replaced revenue sources," as used in this section, means the
223	following taxes, charges, fees, or other impositions to the
224	extent that the respective local taxing jurisdictions were
225	authorized to impose them prior to July 1, 2000.
226	1.  With respect to municipalities and charter counties and
227	the taxes authorized by s. 202.19(1):
228	a.  The public service tax on telecommunications authorized
229	by former s. 166.231(9).
230	b.  Franchise fees on cable service providers as authorized
231	by 47 U.S.C. s. 542.
232	c.  The public service tax on prepaid calling arrangements.
233	d.  Franchise fees on dealers of communications services
234	which use the public roads or rights-of-way, up to the limit set
235	forth in s. 337.401. For purposes of calculating rates under
236	this section, it is the legislative intent that charter counties
237	be treated as having had the same authority as municipalities to
238	impose franchise fees on recurring local telecommunication
239	service revenues prior to July 1, 2000. However, the Legislature
240	recognizes that the authority of charter counties to impose such
241	fees is in dispute, and the treatment provided in this section
242	is not an expression of legislative intent that charter counties
243	actually do or do not possess such authority.
244	e.  Actual permit fees relating to placing or maintaining
245	facilities in or on public roads or rights-of-way, collected
246	from providers of long-distance, cable, and mobile
247	communications services for the fiscal year ending September 30,
248	1999; however, if a municipality or charter county elects the
249	option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
250	such fees shall not be included as a replaced revenue source.
251	2.  With respect to all other counties and the taxes
252	authorized in s. 202.19(1), franchise fees on cable service
253	providers as authorized by 47 U.S.C. s. 542.
254	(2)(3)  For any county or school board that levies a
255	discretionary surtax under s. 212.055, the rate of such tax on
256	communications services as authorized by s. 202.19(5) shall be
257	as follows:
	County .5% Discretionary surtax conversion rates 1% Discretionary surtax conversion rates 1.5% Discretionary surtax conversion rates
258
	Alachua 0.3% 0.6% 0.8%
259
	Baker 0.3% 0.5% 0.8%
260
	Bay 0.3% 0.5% 0.8%
261
	Bradford 0.3% 0.6% 0.8%
262
	Brevard 0.3% 0.6% 0.9%
263
	Broward 0.3% 0.5% 0.8%
264
	Calhoun 0.3% 0.5% 0.8%
265
	Charlotte 0.3% 0.6% 0.9%
266
	Citrus 0.3% 0.6% 0.9%
267
	Clay 0.3% 0.6% 0.8%
268
	Collier 0.4% 0.7% 1.0%
269
	Columbia 0.3% 0.6% 0.9%
270
	Dade 0.3% 0.5% 0.8%
271
	Desoto 0.3% 0.6% 0.8%
272
	Dixie 0.3% 0.5% 0.8%
273
	Duval 0.3% 0.6% 0.8%
274
	Escambia 0.3% 0.6% 0.9%
275
	Flagler 0.4% 0.7% 1.0%
276
	Franklin 0.3% 0.6% 0.9%
277
	Gadsden 0.3% 0.5% 0.8%
278
	Gilchrist 0.3% 0.5% 0.7%
279
	Glades 0.3% 0.6% 0.8%
280
	Gulf 0.3% 0.5% 0.8%
281
	Hamilton 0.3% 0.6% 0.8%
282
	Hardee 0.3% 0.5% 0.8%
283
	Hendry 0.3% 0.6% 0.9%
284
	Hernando 0.3% 0.6% 0.9%
285
	Highlands 0.3% 0.6% 0.9%
286
	Hillsborough 0.3% 0.6% 0.8%
287
	Holmes 0.3% 0.6% 0.8%
288
	Indian River 0.3% 0.6% 0.9%
289
	Jackson 0.3% 0.5% 0.7%
290
	Jefferson 0.3% 0.5% 0.8%
291
	Lafayette 0.3% 0.5% 0.7%
292
	Lake 0.3% 0.6% 0.9%
293
	Lee 0.3% 0.6% 0.9%
294
	Leon 0.3% 0.6% 0.8%
295
	Levy 0.3% 0.5% 0.8%
296
	Liberty 0.3% 0.6% 0.8%
297
	Madison 0.3% 0.5% 0.8%
298
	Manatee 0.3% 0.6% 0.8%
299
	Marion 0.3% 0.5% 0.8%
300
	Martin 0.3% 0.6% 0.8%
301
	Monroe 0.3% 0.6% 0.9%
302
	Nassau 0.3% 0.6% 0.8%
303
	Okaloosa 0.3% 0.6% 0.8%
304
	Okeechobee 0.3% 0.6% 0.9%
305
	Orange 0.3% 0.5% 0.8%
306
	Osceola 0.3% 0.5% 0.8%
307
	Palm Beach 0.3% 0.6% 0.8%
308
	Pasco 0.3% 0.6% 0.9%
309
	Pinellas 0.3% 0.6% 0.9%
310
	Polk 0.3% 0.6% 0.8%
311
	Putnam 0.3% 0.6% 0.8%
312
	St. Johns 0.3% 0.6% 0.8%
313
	St. Lucie 0.3% 0.6% 0.8%
314
	Santa Rosa 0.3% 0.6% 0.9%
315
	Sarasota 0.3% 0.6% 0.9%
316
	Seminole 0.3% 0.6% 0.8%
317
	Sumter 0.3% 0.5% 0.8%
318
	Suwannee 0.3% 0.6% 0.8%
319
	Taylor 0.3% 0.6% 0.9%
320
	Union 0.3% 0.5% 0.8%
321
	Volusia 0.3% 0.6% 0.8%
322
	Wakulla 0.3% 0.6% 0.9%
323
	Walton 0.3% 0.6% 0.9%
324
	Washington 0.3% 0.5% 0.8%
325
326	The discretionary surtax conversion rate with respect to
327	communications services reflected on bills dated on or after
328	October 1, 2001, shall take effect without any further action by
329	a county or school board that has levied a surtax on or before
330	October 1, 2001. For a county or school board that levies a
331	surtax subsequent to October 1, 2001, the discretionary surtax
332	conversion rate with respect to communications services shall
333	take effect upon the effective date of the surtax as provided in
334	s. 212.054. The discretionary sales surtax rate on
335	communications services for a county or school board levying a
336	combined rate which is not listed in the table provided by this
337	subsection shall be calculated by averaging or adding the
338	appropriate rates from the table and rounding up to the nearest
339	tenth of a percent.
340	Section 5.  Section 202.21, Florida Statutes, is amended to
341	read:
342	202.21  Effective dates; procedures for informing dealers
343	of communications services of tax levies and rate changes.--Any
344	adoption, repeal, or change in the rate of a local
345	communications services tax imposed under s. 202.19 is effective
346	with respect to taxable services included on bills that are
347	dated on or after the January 1 subsequent to such adoption,
348	repeal, or change. A municipality or county adopting, repealing,
349	or changing the rate of such tax must notify the department of
350	the adoption, repeal, or change by September 1 immediately
351	preceding such January 1. Notification must be furnished on a
352	form prescribed by the department and must specify the rate of
353	tax; the effective date of the adoption, repeal, or change
354	thereof; and the name, mailing address, and telephone number of
355	a person designated by the municipality or county to respond to
356	inquiries concerning the tax. The department shall provide
357	notice of such adoption, repeal, or change to all affected
358	dealers of communications services at least 90 days before the
359	effective date of the tax. Any local government that adjusts the
360	rate of its local communications services tax by emergency
361	ordinance or resolution pursuant to s. 202.20(2) shall notify
362	the department of the new tax rate immediately upon its
363	adoption. The department shall provide written notice of the
364	adoption of the new rate to all affected dealers within 30 days
365	after receiving such notice. In any notice to providers or
366	publication of local tax rates for purposes of this chapter, the
367	department shall express the rate for a municipality or charter
368	county as the sum of the tax rates levied within such
369	jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall
370	express the rate for any other county as the sum of the tax
371	rates levied pursuant to s. 202.19(2)(b) and (5). The department
372	is not liable for any loss of or decrease in revenue by reason
373	of any error, omission, or untimely action that results in the
374	nonpayment of a tax imposed under s. 202.19.
375	Section 6.  Paragraph (a) of subsection (2) of section
376	202.24, Florida Statutes, is amended to read:
377	202.24  Limitations on local taxes and fees imposed on
378	dealers of communications services.--
379	(2)(a)  Except as provided in paragraph (c), each public
380	body is prohibited from:
381	1.  Levying on or collecting from dealers or purchasers of
382	communications services any tax, charge, fee, or other
383	imposition on or with respect to the provision or purchase of
384	communications services, including, but not limited to,
385	application fees, transfer fees, siting fees, renewal fees, or
386	claims for related costs.
387	2.  Requiring any dealer of communications services to
388	enter into or extend the term of a franchise or other agreement
389	that requires the payment of a tax, charge, fee, or other
390	imposition.
391	3.  Adopting or enforcing any provision of any ordinance or
392	agreement to the extent that such provision obligates a dealer
393	of communications services to charge, collect, or pay to the
394	public body a tax, charge, fee, or other imposition.
395
396	Each municipality and county retains authority to negotiate all
397	terms and conditions of a cable service franchise allowed by
398	federal and state law except those terms and conditions related
399	to franchise fees and the definition of gross revenues or other
400	definitions or methodologies related to the payment or
401	assessment of franchise fees on providers of cable services.
402	Section 7.  The amendments to ss. 202.19(3)(a) and
403	202.24(2)(a), Florida Statutes, contained in this act are
404	remedial in nature and intended to clarify the law in effect on
405	the effective date of this act.
406	Section 8.  This act shall take effect July 1, 2004.

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