HB 1237

CS

CHAMBER ACTION

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

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