Senate Bill sb1296c2
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Florida Senate - 2005 CS for CS for SB's 1296 & CS for SB 2066
By the Committees on Community Affairs; Commerce and Consumer
Services; Government Efficiency Appropriations; and Senators
Haridopolos, Constantine and Dockery
578-2285-05
1 A bill to be entitled
2 An act relating to the communications services
3 tax; amending s. 202.16, F.S.; requiring
4 dealers to document exempt sales for resale;
5 providing requirements; providing a definition;
6 providing construction; providing for dealer
7 provision of evidence of the exempt status of
8 certain sales through an informal protest
9 process; requiring the Department of Revenue to
10 accept certain evidence during the protest
11 period; providing limitations; providing for
12 retroactive application; requiring the
13 Department of Revenue to establish a toll-free
14 telephone number for the purpose of verifying
15 registration numbers and resale certificates;
16 requiring the department to establish a system
17 for receiving information from dealers
18 regarding certificate numbers; amending s.
19 202.19, F.S.; clarifying a characterization of
20 the local communications services tax as
21 including certain fees and being in lieu of
22 such fees; authorizing taxes distributed to a
23 local government under s. 202.18, F.S., to be
24 used for public purposes; amending s. 202.20,
25 F.S.; limiting local governmental authority to
26 make certain rate adjustments in the tax under
27 certain circumstances; deleting obsolete
28 provisions relating to making certain
29 adjustments in the tax for certain periods;
30 amending s. 202.21, F.S.; deleting provisions
31 relating to local government adjustments of the
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1 tax by emergency ordinance or resolution to
2 conform; specifying that certain amendments are
3 remedial in nature and clarify certain
4 provisions of law but do not grant rights to a
5 refund of certain fees or charges under certain
6 circumstances; providing a savings clause for
7 emergency rules adopted before the effective
8 dates of the act; providing effective dates.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Effective upon this act becoming a law, and
13 operating retroactively to December 31, 2004, subsection (2)
14 of section 202.16, Florida Statutes, is amended to read:
15 202.16 Payment.--The taxes imposed or administered
16 under this chapter and chapter 203 shall be collected from all
17 dealers of taxable communications services on the sale at
18 retail in this state of communications services taxable under
19 this chapter and chapter 203. The full amount of the taxes on
20 a credit sale, installment sale, or sale made on any kind of
21 deferred payment plan is due at the moment of the transaction
22 in the same manner as a cash sale.
23 (2)(a) A sale of communications services that are used
24 as a component part of or integrated into a communications
25 service or prepaid calling arrangement for resale, including,
26 but not limited to, carrier-access charges, interconnection
27 charges paid by providers of mobile communication services or
28 other communication services, charges paid by cable service
29 providers for the transmission of video or other programming
30 by another dealer of communications services, charges for the
31 sale of unbundled network elements, and any other intercompany
2
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1 charges for the use of facilities for providing communications
2 services for resale, must be made in compliance with the rules
3 of the department. Any person who makes a sale for resale
4 which is not in compliance with these rules is liable for any
5 tax, penalty, and interest due for failing to comply, to be
6 calculated pursuant to s. 202.28(2)(a).
7 (b)1. Any dealer who makes a sale for resale shall
8 document the exempt nature of the transaction, as established
9 by rules adopted by the department, by retaining a copy of the
10 purchaser's initial or annual resale certificate issued
11 pursuant to s. 202.17(6). In lieu of maintaining a copy of the
12 certificate, a dealer may document, prior to the time of sale,
13 an authorization number, provided telephonically or
14 electronically by the department or by such other means
15 established by rule of the department. The dealer may rely on
16 an initial or annual resale certificate issued pursuant to s.
17 202.17(6), valid at the time of receipt from the purchaser,
18 without seeking additional annual resale certificates from
19 such purchaser, if the dealer makes recurring sales to the
20 purchaser in the normal course of business on a continual
21 basis. For purposes of this paragraph, the term "recurring
22 sales to a purchaser in the normal course of business" means a
23 sale in which the dealer extends credit to the purchaser and
24 records the debt as an account receivable, or in which the
25 dealer sells to a purchaser who has an established cash
26 account, similar to an open credit account. For purposes of
27 this paragraph, purchases are made from a selling dealer on a
28 continual basis if the selling dealer makes, in the normal
29 course of business, sales to the purchaser no less frequently
30 than once in every 12-month period.
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1 2. A dealer may, through the informal protest process
2 provided for in s. 213.21 and the rules of the department,
3 provide the department with evidence of the exempt status of a
4 sale. Exemption certificates executed by entities that were
5 exempt at the time of sale, resale certificates provided by
6 purchasers who were active dealers at the time of sale, and
7 verification by the department of a purchaser's active dealer
8 status at the time of sale in lieu of a resale certificate
9 shall be accepted by the department when submitted during the
10 protest period but may not be accepted in any proceeding under
11 chapter 120 or any circuit court action instituted under
12 chapter 72.
13 Section 2. Effective January 1, 2006, the Department
14 of Revenue shall establish:
15 (1) A toll-free telephone number for the verification
16 of valid registration numbers and resale certificates under
17 section 202.16(2)(b), Florida Statutes. The system must be
18 adequate to guarantee a low busy rate, must respond to keypad
19 inquiries, and must provide data that is updated daily.
20 (2) A system for receiving information from dealers
21 regarding certificate numbers, under section 202.16(2)(b),
22 Florida Statutes, of dealers who are seeking to make purchases
23 for resale. The department shall provide such dealers, free of
24 charge, with verification of those numbers that are cancelled
25 or invalid.
26 Section 3. Paragraph (a) of subsection (3) and
27 subsection (9) of section 202.19, Florida Statutes, are
28 amended to read:
29 202.19 Authorization to impose local communications
30 services tax.--
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1 (3)(a) The tax authorized under this section includes
2 and is in lieu of any fee or other consideration, including,
3 but not limited to, application fees, transfer fees, renewal
4 fees, or claims for related costs, to which the municipality
5 or county is otherwise entitled for granting permission to
6 dealers of communications services, including, but not limited
7 to, providers of cable television services, as authorized in
8 47 U.S.C. s. 542, to use or occupy its roads or rights-of-way
9 for the placement, construction, and maintenance of poles,
10 wires, and other fixtures used in the provision of
11 communications services.
12 (9) The revenues raised by any tax imposed under
13 subsection (1), or s. 202.20(1), or distributed to a local
14 government under s. 202.18, may be used by a municipality or
15 county for any public purpose, including, but not limited to,
16 pledging such revenues for the repayment of current or future
17 bonded indebtedness. Revenues raised by a tax imposed under
18 subsection (5) shall be used for the same purposes as the
19 underlying discretionary sales surtax imposed by the county or
20 school board under s. 212.055.
21 Section 4. Paragraph (a) of subsection (2) of section
22 202.20, Florida Statutes, is amended to read:
23 202.20 Local communications services tax conversion
24 rates.--
25 (2)(a)1. With respect to any local taxing
26 jurisdiction, if, for the periods ending December 31, 2001;
27 March 31, 2002; June 30, 2002; or September 30, 2002, the
28 revenues received by that local government from the local
29 communications services tax imposed under subsection (1) are
30 less than the revenues received from the replaced revenue
31 sources for the corresponding 2000-2001 period; plus
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1 reasonably anticipated growth in such revenues over the
2 preceding 1-year period, based on the average growth of such
3 revenues over the immediately preceding 5-year period; plus an
4 amount representing the revenues from the replaced revenue
5 sources for the 1-month period that the local taxing
6 jurisdiction was required to forego, the governing authority
7 may adjust the rate of the local communications services tax
8 upward to the extent necessary to generate the entire
9 shortfall in revenues within 1 year after the rate adjustment
10 and by an amount necessary to generate the expected amount of
11 revenue on an ongoing basis.
12 2. If complete data are not available at the time of
13 determining whether the revenues received by a local
14 government from the local communications services tax imposed
15 under subsection (1) are less than the revenues received from
16 the replaced revenue sources for the corresponding 2000-2001
17 period, as set forth in subparagraph 1., the local government
18 shall use the best data available for the corresponding
19 2000-2001 period in making such determination.
20 3. The adjustment permitted under subparagraph 1. may
21 be made by emergency ordinance or resolution and may be made
22 notwithstanding the maximum rate established under s.
23 202.19(2) and notwithstanding any schedules or timeframes or
24 any other limitations contained in this chapter. The authority
25 of a local government to make such adjustment may be exercised
26 only if the department or a dealer reallocates revenue away
27 from the local government. The emergency ordinance or
28 resolution shall specify an effective date for the adjusted
29 rate, which shall be no less than 60 days after the date of
30 adoption of the ordinance or resolution and shall be effective
31 with respect to taxable services included on bills that are
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1 dated on the first day of a month subsequent to the expiration
2 of the 60-day period. At the end of 1 year following the
3 effective date of such adjusted rate, the local governing
4 authority shall, as soon as is consistent with s. 202.21,
5 reduce the rate by that portion of the emergency rate which
6 was necessary to recoup the amount of revenues not received
7 prior to the implementation of the emergency rate.
8 4. If, for the period October 1, 2001, through
9 September 30, 2002, the revenues received by a local
10 government from the local communications services tax
11 conversion rate established under subsection (1), adjusted
12 upward for the difference in rates between paragraphs (1)(a)
13 and (b) or any other rate adjustments or base changes, are
14 above the threshold of 10 percent more than the revenues
15 received from the replaced revenue sources for the
16 corresponding 2000-2001 period plus reasonably anticipated
17 growth in such revenues over the preceding 1-year period,
18 based on the average growth of such revenues over the
19 immediately preceding 5-year period, the governing authority
20 must adjust the rate of the local communications services tax
21 to the extent necessary to reduce revenues to the threshold by
22 emergency ordinance or resolution within the timeframes
23 established in subparagraph 3. The foregoing rate adjustment
24 requirement shall not apply to a local government that adopts
25 a local communications services tax rate by resolution or
26 ordinance. If complete data are not available at the time of
27 determining whether the revenues exceed the threshold, the
28 local government shall use the best data available for the
29 corresponding 2000-2001 period in making such determination.
30 This subparagraph shall not be construed as establishing a
31 right of action for any person to enforce this subparagraph or
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1 challenge a local government's implementation of this
2 subparagraph.
3 Section 5. Effective July 1, 2007, subsection (2) of
4 section 202.20, Florida Statutes, as amended by this act, is
5 amended to read:
6 202.20 Local communications services tax conversion
7 rates.--
8 (2)(a)1. With respect to any local taxing
9 jurisdiction, if, for the periods ending December 31, 2001;
10 March 31, 2002; June 30, 2002; or September 30, 2002, the
11 revenues received by that local government from the local
12 communications services tax imposed under subsection (1) are
13 less than the revenues received from the replaced revenue
14 sources for the corresponding 2000-2001 period; plus
15 reasonably anticipated growth in such revenues over the
16 preceding 1-year period, based on the average growth of such
17 revenues over the immediately preceding 5-year period; plus an
18 amount representing the revenues from the replaced revenue
19 sources for the 1-month period that the local taxing
20 jurisdiction was required to forego, the governing authority
21 may adjust the rate of the local communications services tax
22 upward to the extent necessary to generate the entire
23 shortfall in revenues within 1 year after the rate adjustment
24 and by an amount necessary to generate the expected amount of
25 revenue on an ongoing basis.
26 2. If complete data are not available at the time of
27 determining whether the revenues received by a local
28 government from the local communications services tax imposed
29 under subsection (1) are less than the revenues received from
30 the replaced revenue sources for the corresponding 2000-2001
31 period, as set forth in subparagraph 1., the local government
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1 shall use the best data available for the corresponding
2 2000-2001 period in making such determination.
3 3. The adjustment permitted under subparagraph 1. may
4 be made by emergency ordinance or resolution and may be made
5 notwithstanding the maximum rate established under s.
6 202.19(2) and notwithstanding any schedules or timeframes or
7 any other limitations contained in this chapter. The authority
8 of a local government to make such adjustment may be exercised
9 only if the department or a dealer reallocates revenue away
10 from the local government. The emergency ordinance or
11 resolution shall specify an effective date for the adjusted
12 rate, which shall be no less than 60 days after the date of
13 adoption of the ordinance or resolution and shall be effective
14 with respect to taxable services included on bills that are
15 dated on the first day of a month subsequent to the expiration
16 of the 60-day period. At the end of 1 year following the
17 effective date of such adjusted rate, the local governing
18 authority shall, as soon as is consistent with s. 202.21,
19 reduce the rate by that portion of the emergency rate which
20 was necessary to recoup the amount of revenues not received
21 prior to the implementation of the emergency rate.
22 4. If, for the period October 1, 2001, through
23 September 30, 2002, the revenues received by a local
24 government from the local communications services tax
25 conversion rate established under subsection (1), adjusted
26 upward for the difference in rates between paragraphs (1)(a)
27 and (b) or any other rate adjustments or base changes, are
28 above the threshold of 10 percent more than the revenues
29 received from the replaced revenue sources for the
30 corresponding 2000-2001 period plus reasonably anticipated
31 growth in such revenues over the preceding 1-year period,
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Florida Senate - 2005 CS for CS for SB's 1296 & CS for SB 2066
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1 based on the average growth of such revenues over the
2 immediately preceding 5-year period, the governing authority
3 must adjust the rate of the local communications services tax
4 to the extent necessary to reduce revenues to the threshold by
5 emergency ordinance or resolution within the timeframes
6 established in subparagraph 3. The foregoing rate adjustment
7 requirement shall not apply to a local government that adopts
8 a local communications services tax rate by resolution or
9 ordinance. If complete data are not available at the time of
10 determining whether the revenues exceed the threshold, the
11 local government shall use the best data available for the
12 corresponding 2000-2001 period in making such determination.
13 This subparagraph shall not be construed as establishing a
14 right of action for any person to enforce this subparagraph or
15 challenge a local government's implementation of this
16 subparagraph.
17 (b) The term Except as otherwise provided in this
18 subsection, "replaced revenue sources," as used in this
19 section, means the following taxes, charges, fees, or other
20 impositions to the extent that the respective local taxing
21 jurisdictions were authorized to impose them prior to July 1,
22 2000.
23 (a)1. With respect to municipalities and charter
24 counties and the taxes authorized by s. 202.19(1):
25 1.a. The public service tax on telecommunications
26 authorized by former s. 166.231(9).
27 2.b. Franchise fees on cable service providers as
28 authorized by 47 U.S.C. s. 542.
29 3.c. The public service tax on prepaid calling
30 arrangements.
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1 4.d. Franchise fees on dealers of communications
2 services which use the public roads or rights-of-way, up to
3 the limit set forth in s. 337.401. For purposes of calculating
4 rates under this section, it is the legislative intent that
5 charter counties be treated as having had the same authority
6 as municipalities to impose franchise fees on recurring local
7 telecommunication service revenues prior to July 1, 2000.
8 However, the Legislature recognizes that the authority of
9 charter counties to impose such fees is in dispute, and the
10 treatment provided in this section is not an expression of
11 legislative intent that charter counties actually do or do not
12 possess such authority.
13 5.e. Actual permit fees relating to placing or
14 maintaining facilities in or on public roads or rights-of-way,
15 collected from providers of long-distance, cable, and mobile
16 communications services for the fiscal year ending September
17 30, 1999; however, if a municipality or charter county elects
18 the option to charge permit fees pursuant to s.
19 337.401(3)(c)1.a., such fees shall not be included as a
20 replaced revenue source.
21 (b)2. With respect to all other counties and the taxes
22 authorized in s. 202.19(1), franchise fees on cable service
23 providers as authorized by 47 U.S.C. s. 542.
24 Section 6. Effective July 1, 2007, section 202.21,
25 Florida Statutes, is amended to read:
26 202.21 Effective dates; procedures for informing
27 dealers of communications services of tax levies and rate
28 changes.--Any adoption, repeal, or change in the rate of a
29 local communications services tax imposed under s. 202.19 is
30 effective with respect to taxable services included on bills
31 that are dated on or after the January 1 subsequent to such
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1 adoption, repeal, or change. A municipality or county
2 adopting, repealing, or changing the rate of such tax must
3 notify the department of the adoption, repeal, or change by
4 September 1 immediately preceding such January 1. Notification
5 must be furnished on a form prescribed by the department and
6 must specify the rate of tax; the effective date of the
7 adoption, repeal, or change thereof; and the name, mailing
8 address, and telephone number of a person designated by the
9 municipality or county to respond to inquiries concerning the
10 tax. The department shall provide notice of such adoption,
11 repeal, or change to all affected dealers of communications
12 services at least 90 days before the effective date of the
13 tax. Any local government that adjusts the rate of its local
14 communications services tax by emergency ordinance or
15 resolution pursuant to s. 202.20(2) shall notify the
16 department of the new tax rate immediately upon its adoption.
17 The department shall provide written notice of the adoption of
18 the new rate to all affected dealers within 30 days after
19 receiving such notice. In any notice to providers or
20 publication of local tax rates for purposes of this chapter,
21 the department shall express the rate for a municipality or
22 charter county as the sum of the tax rates levied within such
23 jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall
24 express the rate for any other county as the sum of the tax
25 rates levied pursuant to s. 202.19(2)(b) and (5). The
26 department is not liable for any loss of or decrease in
27 revenue by reason of any error, omission, or untimely action
28 that results in the nonpayment of a tax imposed under s.
29 202.19.
30 Section 7. The amendments to section 202.19(3)(a),
31 Florida Statutes, contained in this act are remedial in nature
12
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1 and intended to clarify the law in effect on October 1, 2001,
2 but do not grant any right to a refund of any fees or charges
3 paid prior to July 1, 2005, unless the payment was made under
4 written protest as to the authority of any local government to
5 impose such fees or costs on a dealer.
6 Section 8. The amendments to provisions of law made by
7 this act do not apply to emergency rates adopted under section
8 202.20, Florida Statutes, prior to the effective dates of this
9 act.
10 Section 9. Except as otherwise expressly provided in
11 this act, this act shall take effect upon becoming a law.
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13 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
14 CS/SB 1296 and CS/SB 2066
15
16 The CS revises requirements relating to the establishment of a
system by the Department of Revenue to verify resale
17 certificates and valid registration numbers of communications
dealers.
18
The CS clarifies the authority of local governments to pledge
19 the revenues from communications services tax extends to the
revenues generated through the local government half-cent
20 sales tax authorized under s. 218.61, F.S.
21 The CS provides a grandfathering provision for existing
emergency rates already adopted by local governments.
22
The CS implements several technical revisions.
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