HB 1237

CS

CHAMBER ACTION

1	The Committee on Finance & Tax 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. 202.16, F.S.; providing requirements for dealers making
8	certain sales for resale; providing procedures and
9	limitations; providing a definition; providing
10	responsibilities of the Department of Revenue; amending s.
11	202.19, F.S.; clarifying the inclusion of certain fees and
12	costs in the tax rate; amending s. 202.20, F.S.;
13	specifying certain conditions for governing authority
14	authorization to make certain adjustments; repealing s.
15	202.20(2), F.S., relating to authorizing governing
16	authorities to adjust the rate of local communications
17	services taxes; amending s. 202.21, F.S., to conform;
18	specifying certain revisions to law as remedial and
19	clarifying; prohibiting the refund of certain fees or
20	costs under certain circumstances; providing an exception;
21	providing effective dates.
22
23	Be It Enacted by the Legislature of the State of Florida:
24
25	Section 1.  Effective December 31, 2004, subsection (2) of
26	section 202.16, Florida Statutes, is amended to read:
27	202.16  Payment.--The taxes imposed or administered under
28	this chapter and chapter 203 shall be collected from all dealers
29	of taxable communications services on the sale at retail in this
30	state of communications services taxable under this chapter and
31	chapter 203. The full amount of the taxes on a credit sale,
32	installment sale, or sale made on any kind of deferred payment
33	plan is due at the moment of the transaction in the same manner
34	as a cash sale.
35	(2)(a)  A sale of communications services that are used as
36	a component part of or integrated into a communications service
37	or prepaid calling arrangement for resale, including, but not
38	limited to, carrier-access charges, interconnection charges paid
39	by providers of mobile communication services or other
40	communication services, charges paid by cable service providers
41	for the transmission of video or other programming by another
42	dealer of communications services, charges for the sale of
43	unbundled network elements, and any other intercompany charges
44	for the use of facilities for providing communications services
45	for resale, must be made in compliance with the rules of the
46	department. Any person who makes a sale for resale which is not
47	in compliance with these rules is liable for any tax, penalty,
48	and interest due for failing to comply, to be calculated
49	pursuant to s. 202.28(2)(a).
50	(b)  Any dealer who makes a sale for resale shall document
51	the exempt nature of the transaction, as established by rules
52	adopted by the department, by retaining a copy of the
53	purchaser's initial or annual resale certificate issued pursuant
54	to s. 202.17(6). In lieu of maintaining a copy of the
55	certificate, a dealer may document, prior to the time of sale,
56	an authorization number provided telephonically or
57	electronically by the department or by such other means
58	established by rule of the department. The dealer may rely on an
59	initial or annual resale certificate issued pursuant to s.
60	202.17(6), valid at the time of receipt from the purchaser,
61	without seeking additional annual resale certificates from such
62	purchaser if the dealer makes recurring sales to such purchaser
63	in the normal course of business on a continual basis. For
64	purposes of this paragraph, the term "recurring sales to a
65	purchaser in the normal course of business" means a sale in
66	which the dealer extends credit to the purchaser and records the
67	debt as an account receivable or in which the dealer sells to a
68	purchaser who has an established cash account, similar to an
69	open credit account. For purposes of this paragraph, purchases
70	are made from a selling dealer on a continual basis if the
71	selling dealer makes, in the normal course of business, sales to
72	the purchaser no less frequently than once in every 12-month
73	period. A dealer may, through the informal protest provided for
74	in s. 213.21 and the rules of the department, provide the
75	department with evidence of the exempt status of a sale.
76	Exemption certificates executed by entities that were exempt at
77	the time of sale, resale certificates provided by purchasers who
78	were active dealers at the time of sale, and verification by the
79	department of a purchaser's active dealer status at the time of
80	sale in lieu of a resale certificate shall be accepted by the
81	department when submitted during the protest period but may not
82	be accepted in any proceeding under chapter 120 or any circuit
83	court action instituted under chapter 72.
84	Section 2.  Paragraph (a) of subsection (3) of section
85	202.19, Florida Statutes, is amended to read:
86	202.19  Authorization to impose local communications
87	services tax.--
88	(3)(a)  The tax authorized under this section includes and
89	is in lieu of any fee or other consideration, including, but not
90	limited to, application fees, transfer fees, renewal fees, or
91	claims for related costs, to which the municipality or county is
92	otherwise entitled for granting permission to dealers of
93	communications services, including, but not limited to,
94	providers of cable television services, as authorized in 47
95	U.S.C. s. 542, to use or occupy its roads or rights-of-way for
96	the placement, construction, and maintenance of poles, wires,
97	and other fixtures used in the provision of communications
98	services.
99	Section 3.  Paragraph (a) of subsection (2) of section
100	202.20, Florida Statutes, is amended to read:
101	202.20  Local communications services tax conversion
102	rates.--
103	(2)(a)1.  With respect to any local taxing jurisdiction,
104	if, for the periods ending December 31, 2001; March 31, 2002;
105	June 30, 2002; or September 30, 2002, the revenues received by
106	that local government from the local communications services tax
107	imposed under subsection (1) are less than the revenues received
108	from the replaced revenue sources for the corresponding 2000-
109	2001 period; plus reasonably anticipated growth in such revenues
110	over the preceding 1-year period, based on the average growth of
111	such revenues over the immediately preceding 5-year period; plus
112	an amount representing the revenues from the replaced revenue
113	sources for the 1-month period that the local taxing
114	jurisdiction was required to forego, the governing authority may
115	adjust the rate of the local communications services tax upward
116	to the extent necessary to generate the entire shortfall in
117	revenues within 1 year after the rate adjustment and by an
118	amount necessary to generate the expected amount of revenue on
119	an ongoing basis.
120	2.  If complete data are not available at the time of
121	determining whether the revenues received by a local government
122	from the local communications services tax imposed under
123	subsection (1) are less than the revenues received from the
124	replaced revenue sources for the corresponding 2000-2001 period,
125	as set forth in subparagraph 1., the local government shall use
126	the best data available for the corresponding 2000-2001 period
127	in making such determination.
128	3.  The adjustment permitted under subparagraph 1. may be
129	made by emergency ordinance or resolution and may be made
130	notwithstanding the maximum rate established under s. 202.19(2)
131	and notwithstanding any schedules or timeframes or any other
132	limitations contained in this chapter. The authority to make
133	such adjustment may only be exercised if the department or a
134	dealer reallocates revenue away from the local government. The
135	emergency ordinance or resolution shall specify an effective
136	date for the adjusted rate, which shall be no less than 60 days
137	after the date of adoption of the ordinance or resolution and
138	shall be effective with respect to taxable services included on
139	bills that are dated on the first day of a month subsequent to
140	the expiration of the 60-day period. At the end of 1 year
141	following the effective date of such adjusted rate, the local
142	governing authority shall, as soon as is consistent with s.
143	202.21, reduce the rate by that portion of the emergency rate
144	which was necessary to recoup the amount of revenues not
145	received prior to the implementation of the emergency rate.
146	4.  If, for the period October 1, 2001, through September
147	30, 2002, the revenues received by a local government from the
148	local communications services tax conversion rate established
149	under subsection (1), adjusted upward for the difference in
150	rates between paragraphs (1)(a) and (b) or any other rate
151	adjustments or base changes, are above the threshold of 10
152	percent more than the revenues received from the replaced
153	revenue sources for the corresponding 2000-2001 period plus
154	reasonably anticipated growth in such revenues over the
155	preceding 1-year period, based on the average growth of such
156	revenues over the immediately preceding 5-year period, the
157	governing authority must adjust the rate of the local
158	communications services tax to the extent necessary to reduce
159	revenues to the threshold by emergency ordinance or resolution
160	within the timeframes established in subparagraph 3. The
161	foregoing rate adjustment requirement shall not apply to a local
162	government that adopts a local communications services tax rate
163	by resolution or ordinance. If complete data are not available
164	at the time of determining whether the revenues exceed the
165	threshold, the local government shall use the best data
166	available for the corresponding 2000-2001 period in making such
167	determination. This subparagraph shall not be construed as
168	establishing a right of action for any person to enforce this
169	subparagraph or challenge a local government's implementation of
170	this subparagraph.
171	Section 4.  Effective July 1, 2007, subsection (2) of
172	section 202.20, Florida Statutes, as amended by this act, is
173	repealed:
174	202.20  Local communications services tax conversion
175	rates.--
176	(2)(a)1.  With respect to any local taxing jurisdiction,
177	if, for the periods ending December 31, 2001; March 31, 2002;
178	June 30, 2002; or September 30, 2002, the revenues received by
179	that local government from the local communications services tax
180	imposed under subsection (1) are less than the revenues received
181	from the replaced revenue sources for the corresponding 2000-
182	2001 period; plus reasonably anticipated growth in such revenues
183	over the preceding 1-year period, based on the average growth of
184	such revenues over the immediately preceding 5-year period; plus
185	an amount representing the revenues from the replaced revenue
186	sources for the 1-month period that the local taxing
187	jurisdiction was required to forego, the governing authority may
188	adjust the rate of the local communications services tax upward
189	to the extent necessary to generate the entire shortfall in
190	revenues within 1 year after the rate adjustment and by an
191	amount necessary to generate the expected amount of revenue on
192	an ongoing basis.
193	2.  If complete data are not available at the time of
194	determining whether the revenues received by a local government
195	from the local communications services tax imposed under
196	subsection (1) are less than the revenues received from the
197	replaced revenue sources for the corresponding 2000-2001 period,
198	as set forth in subparagraph 1., the local government shall use
199	the best data available for the corresponding 2000-2001 period
200	in making such determination.
201	3.  The adjustment permitted under subparagraph 1. may be
202	made by emergency ordinance or resolution and may be made
203	notwithstanding the maximum rate established under s. 202.19(2)
204	and notwithstanding any schedules or timeframes or any other
205	limitations contained in this chapter. The authority to make
206	such adjustment may only be exercised if the department or a
207	dealer reallocates revenue away from the local government. The
208	emergency ordinance or resolution shall specify an effective
209	date for the adjusted rate, which shall be no less than 60 days
210	after the date of adoption of the ordinance or resolution and
211	shall be effective with respect to taxable services included on
212	bills that are dated on the first day of a month subsequent to
213	the expiration of the 60-day period. At the end of 1 year
214	following the effective date of such adjusted rate, the local
215	governing authority shall, as soon as is consistent with s.
216	202.21, reduce the rate by that portion of the emergency rate
217	which was necessary to recoup the amount of revenues not
218	received prior to the implementation of the emergency rate.
219	4.  If, for the period October 1, 2001, through September
220	30, 2002, the revenues received by a local government from the
221	local communications services tax conversion rate established
222	under subsection (1), adjusted upward for the difference in
223	rates between paragraphs (1)(a) and (b) or any other rate
224	adjustments or base changes, are above the threshold of 10
225	percent more than the revenues received from the replaced
226	revenue sources for the corresponding 2000-2001 period plus
227	reasonably anticipated growth in such revenues over the
228	preceding 1-year period, based on the average growth of such
229	revenues over the immediately preceding 5-year period, the
230	governing authority must adjust the rate of the local
231	communications services tax to the extent necessary to reduce
232	revenues to the threshold by emergency ordinance or resolution
233	within the timeframes established in subparagraph 3. The
234	foregoing rate adjustment requirement shall not apply to a local
235	government that adopts a local communications services tax rate
236	by resolution or ordinance. If complete data are not available
237	at the time of determining whether the revenues exceed the
238	threshold, the local government shall use the best data
239	available for the corresponding 2000-2001 period in making such
240	determination. This subparagraph shall not be construed as
241	establishing a right of action for any person to enforce this
242	subparagraph or challenge a local government's implementation of
243	this subparagraph.
244	(b)  Except as otherwise provided in this subsection,
245	"replaced revenue sources," as used in this section, means the
246	following taxes, charges, fees, or other impositions to the
247	extent that the respective local taxing jurisdictions were
248	authorized to impose them prior to July 1, 2000.
249	1.  With respect to municipalities and charter counties and
250	the taxes authorized by s. 202.19(1):
251	a.  The public service tax on telecommunications authorized
252	by former s. 166.231(9).
253	b.  Franchise fees on cable service providers as authorized
254	by 47 U.S.C. s. 542.
255	c.  The public service tax on prepaid calling arrangements.
256	d.  Franchise fees on dealers of communications services
257	which use the public roads or rights-of-way, up to the limit set
258	forth in s. 337.401. For purposes of calculating rates under
259	this section, it is the legislative intent that charter counties
260	be treated as having had the same authority as municipalities to
261	impose franchise fees on recurring local telecommunication
262	service revenues prior to July 1, 2000. However, the Legislature
263	recognizes that the authority of charter counties to impose such
264	fees is in dispute, and the treatment provided in this section
265	is not an expression of legislative intent that charter counties
266	actually do or do not possess such authority.
267	e.  Actual permit fees relating to placing or maintaining
268	facilities in or on public roads or rights-of-way, collected
269	from providers of long-distance, cable, and mobile
270	communications services for the fiscal year ending September 30,
271	1999; however, if a municipality or charter county elects the
272	option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
273	such fees shall not be included as a replaced revenue source.
274	2.  With respect to all other counties and the taxes
275	authorized in s. 202.19(1), franchise fees on cable service
276	providers as authorized by 47 U.S.C. s. 542.
277	Section 5.  Effective July 1, 2007, section 202.21, Florida
278	Statutes, is amended to read:
279	202.21  Effective dates; procedures for informing dealers
280	of communications services of tax levies and rate changes.--Any
281	adoption, repeal, or change in the rate of a local
282	communications services tax imposed under s. 202.19 is effective
283	with respect to taxable services included on bills that are
284	dated on or after the January 1 subsequent to such adoption,
285	repeal, or change. A municipality or county adopting, repealing,
286	or changing the rate of such tax must notify the department of
287	the adoption, repeal, or change by September 1 immediately
288	preceding such January 1. Notification must be furnished on a
289	form prescribed by the department and must specify the rate of
290	tax; the effective date of the adoption, repeal, or change
291	thereof; and the name, mailing address, and telephone number of
292	a person designated by the municipality or county to respond to
293	inquiries concerning the tax. The department shall provide
294	notice of such adoption, repeal, or change to all affected
295	dealers of communications services at least 90 days before the
296	effective date of the tax. Any local government that adjusts the
297	rate of its local communications services tax by emergency
298	ordinance or resolution pursuant to s. 202.20(2) shall notify
299	the department of the new tax rate immediately upon its
300	adoption. The department shall provide written notice of the
301	adoption of the new rate to all affected dealers within 30 days
302	after receiving such notice. In any notice to providers or
303	publication of local tax rates for purposes of this chapter, the
304	department shall express the rate for a municipality or charter
305	county as the sum of the tax rates levied within such
306	jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall
307	express the rate for any other county as the sum of the tax
308	rates levied pursuant to s. 202.19(2)(b) and (5). The department
309	is not liable for any loss of or decrease in revenue by reason
310	of any error, omission, or untimely action that results in the
311	nonpayment of a tax imposed under s. 202.19.
312	Section 6.  The amendment to s. 202.19(3)(a), Florida
313	Statutes, contained in this act is remedial in nature and
314	intended to clarify the law in effect on October 1, 2001, but
315	shall not grant any right to a refund of any fees or costs paid
316	prior to July 1, 2004, unless the payment was made under written
317	protest as to the authority of any local government to impose
318	such fees or costs on a dealer.
319	Section 7.  Except as otherwise provided herein, this act
320	shall take effect July 1, 2004.

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