HB 1357

1
A bill to be entitled
2An act relating to the tax on sales, use, and other
3transactions; amending s. 212.03, F.S.; clarifying the
4meaning of the term "engaging in the business of renting,
5leasing, letting, or granting a license to use transient
6rental accommodations" for taxation purposes; expanding
7the definition of the term "total rent or consideration";
8providing definitions for the terms "discount rate" and
9"markup"; requiring persons engaged in renting certain
10accommodations to register with the Department of Revenue
11as sales tax dealers and collect and remit taxes;
12providing that the registered owners or operators of
13certain accommodations may agree in writing to report and
14remit taxes on behalf of the person engaged in renting the
15accommodations; requiring persons engaged in certain
16remarketing activities regarding transient rental
17accommodations to collect taxes on total rentals;
18providing alternate methods for remarketers to remit taxes
19to the Department of Revenue; providing for incorporating
20transient rentals into vacation packages; providing for
21administration by the department of taxes remitted by
22remarketers; providing for a local audit under certain
23circumstances; providing intent; providing amnesty for
24unpaid taxes, penalties, and interest on transient rentals
25under certain circumstances; authorizing the department to
26adopt emergency rules to implement the amnesty; amending
27s. 212.04, F.S.; requiring travel agents to be registered
28as a seller of travel; providing for recordkeeping;
29amending s. 212.18, F.S.; requiring a single registration
30for transient rental remarketers; providing an effective
31date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Subsections (8), (9), (10), and (11) are added
36to section 212.03, Florida Statutes, to read:
37     212.03  Transient rentals tax; rate, procedure,
38enforcement, exemptions.--
39     (8)(a)  For purposes of this section and ss. 125.0104,
40125.0108, and 212.0305, the term "engaging in the business of
41renting, leasing, letting, or granting a license to use
42transient rental accommodations" includes any activity in which
43a person offers information about the availability of
44accommodations to a customer, arranges for the customer's
45occupancy of the accommodations, establishes the total rental
46price the customer pays for the accommodations, and collects the
47rental payments from the customer. The term "remarketer" means a
48person who engages in the activities described in this
49subsection.
50     (b)  The terms "total rent" as used in this section, "total
51consideration" as used in ss. 125.0104 and 125.0108, and
52"consideration" as used in s. 212.0305 have the same meaning.
53The terms include the total consideration a customer must pay in
54order to use or occupy a transient accommodation, including
55service charges or fees that are a condition of occupancy,
56except for mandatory fees imposed for the availability of
57communications services. Charges or fees paid by a customer to
58the person collecting the rent or consideration as a condition
59of occupancy are included in the taxable rent or consideration
60even if the charges or fees are separately itemized on the
61customer's bill or are for items or services provided by a third
62party. Charges for items or services provided to occupants of
63transient accommodations that are not intrinsic to occupancy of
64the accommodation, are provided only upon the election of the
65occupant, and are separately itemized are not taxable rent or
66consideration.
67     (c)  The term "discount rate" as used in this section means
68the rate the registered owner or operator of the accommodation
69charges the remarketer for the room.
70     (d)  The term "markup" as used in this section means the
71difference between the total rent and the discounted rate.
72     (9)  Persons engaging in activities described in paragraph
73(8)(a) shall register with the department and, except as
74provided in subsection (10), collect and remit taxes on the
75total rent charged to their customers, unless the registered
76owners or operators of the accommodations agree in writing to
77report and remit taxes on their behalf. Any written agreement
78must require the person collecting the rent to report total
79taxable sales and taxes due and pay the taxes collected to the
80owner or operator by the last day of the month in which the
81customer pays the rent or the last day of the month in which the
82customer completes the occupancy of the accommodation. The owner
83or operator shall report and remit the taxes with the owner or
84operator's return that is due in the month following the month
85in which the taxes are paid to the owner or operator. The owner
86or operator is not liable for any tax, penalty, or interest due
87as a result of the failure of the person who arranged the
88occupancy and collected the rent to accurately report and remit
89the taxes imposed by this section or by ss. 125.0104, 125.0108,
90and 212.0305. If the owner or operator does not agree to report
91and remit taxes on behalf of the person who rents the
92accommodations as provided in paragraph (8)(a), that person
93shall extend his or her annual resale certificate in lieu of
94paying taxes on the amounts he or she pays to the owner or
95operator for the accommodations. The department may provide by
96rule for a single registration by a person engaged in the
97activities described in paragraph (8)(a) rather than require
98separate registrations for each location where transient rental
99accommodations are located. Such person may file consolidated
100returns as provided in s. 212.11(1)(e).
101     (10)(a)  Remarketers shall collect taxes on the total rent
102collected from their customers. A remarketer may elect to remit
103the taxes as provided in paragraph (b) or in paragraph (c). A
104remarketer shall remit all taxes collected under this section in
105the same manner.
106     (b)1.  A remarketer may elect to remit under a dual-
107remittance system. The remarketer electing this method shall
108register with the department as a dealer for purposes of this
109chapter. The remarketer shall remit to the owner or operator of
110any transient rental accommodations occupied by a customer of
111the remarketer the taxes due under chapter 125 and under this
112chapter at the discount rate at the time of payment of that rate
113to the owner or operator. The owner or operator shall report and
114remit the total taxes received from the remarketer with the next
115return due after the month in which the owner or operator
116receives payment from the remarketer. The remarketer shall
117report and remit to the department the taxes due under chapter
118125 and under this chapter on the markup. The taxes must be
119reported on and remitted with the first return due from the
120remarketer after the month in which the customer pays the rental
121to the remarketer.
122     2.  The remarketer shall provide a copy of its dealer
123registration certificate to the owner or operator of any
124transient rental accommodations with which the remarketer has
125entered a contractual remarketing arrangement to evidence the
126remarketer's election to remit taxes directly to the department
127on the markup. If a remarketer that has a contractual
128remarketing arrangement with the owner or operator does not
129provide the certificate, the owner or operator shall collect and
130remit taxes under the single remittance system described in
131paragraph (c), unless the remarketer provides the documentation
132described in paragraph (d) concerning use of transient
133accommodations as components of vacation packages.
134     (c)  A remarketer may elect to remit under a single
135remittance system. The remarketer electing this method shall
136disclose to the owner or operator of the transient rental
137accommodations the total rental paid by the remarketer's
138customer and remit the taxes on the total rental to the owner or
139operator with the payment of the discount rate. If the
140remarketer does not disclose the total rental received from the
141customer, the remarketer shall remit to the owner or operator
142taxes on 135 percent of the discount rate or, if a written
143contract between the remarketer and the owner or operator
144establishes a lesser maximum amount, the remarketer may charge
145as total rental to the customer tax on the maximum amount. The
146owner or operator shall report and remit the total taxes
147received from the remarketer with the next return due after the
148month in which the owner or operator receives the payment. The
149owner or operator is not liable for any tax, penalty, or
150interest due if the remarketer fails to accurately report and
151remit the taxes imposed by this section or by ss. 125.0104,
152125.0108, and 212.0305. The owner or operator shall maintain in
153its records the information provided by the remarketer for the
154period of time for which the return in which that information is
155reflected is subject to audit by the department.
156     (d)  If a remarketer is a travel agent within the meaning
157of s. 212.04(1)(d), the remarketer may treat transient
158accommodations as component parts of vacation packages when the
159requirements of that provision are met. A remarketer that
160operates under a single remittance system may furnish a copy of
161the remarketer's certificate of registration as a seller of
162travel or letter of exemption from registration as a seller of
163travel to the owner or operator of accommodations that are
164incorporated as component parts of vacation packages to
165establish that the accommodations are not subject to the
166disclosure and tax collection requirements of paragraph (c).
167     (e)  The owner or operator of transient accommodations has
168no obligation to inquire whether a person that rents transient
169accommodations is acting as a remarketer in regard to those
170accommodations. The obligations imposed on an owner or operator
171by this subsection arise only if there is a contractual
172remarketing arrangement between the owner or operator and the
173person that rents transient accommodation from the owner or
174operator.
175     (11)(a)1.  The department shall administer, collect, and
176enforce all taxes remitted by remarketers on the markup under a
177dual-remittance system, including interest and penalties
178attributable to such taxes, regardless of whether the taxes are
179imposed under this chapter or chapter 125. Notwithstanding any
180election made by a county to self-administer local taxes under
181chapter 125 or s. 212.0305, each remarketer obligated to collect
182and remit one or more local taxes on transient accommodations
183imposed under chapter 125 or s. 212.0305 under a dual-remittance
184system shall separately report and identify each tax to the
185department, by jurisdiction, on a form prescribed by the
186department, and shall pay the taxes to the department. A
187remarketer may include in a single payment to the department the
188total amount of all state and local taxes on the markup on
189transient rentals imposed under this chapter and chapter 125.
190     2.  The department shall keep records showing the amount of
191taxes collected, which records shall also include records
192disclosing the amount of taxes collected for each county in
193which the tax authorized by this section is applicable. These
194records shall be open for inspection during the regular office
195hours of the department, subject to s. 213.053. Proceeds
196received by the department from the taxes, less costs of
197administration of this section, shall be paid and returned
198monthly to the county that imposed the tax, for use by the
199county according to the section under which the tax was imposed.
200The proceeds shall be paid to the county in the month after
201which they are received by the department in the same manner as
202other taxes imposed under chapter 125 which are administered by
203the department. For purposes of this section, the proceeds of
204any tax levied by a county under chapter 125 or s. 212.0305 are
205all funds collected and received by the department under a
206specific levy authorized by this chapter or section, including
207any interest and penalties attributable to the tax levy.
208     (b)  Audits performed by the department shall include a
209determination of whether the rates collected for applicable
210local tourist development taxes, tourist impact taxes, and
211convention development taxes are correct. A person or entity
212designated by a county to receive information from the
213department under s. 213.0535 may provide evidence to the
214department demonstrating a specific person's failure to fully or
215correctly report taxable remarketing activities within the
216jurisdiction, including evidence discovered in a county's audit
217of a transient rental owner or operator under chapter 125 or s.
218212.0305. The department may request additional information from
219the designee to assist in any review. The department shall
220inform the designee of what action, if any, the department
221intends to take regarding the person.
222     (c)  Notwithstanding paragraph (a), if a remarketer engages
223in remarketing activities solely in regard to transient
224accommodations located within a single county in the state and
225that county self-administers tourist development or tourist
226impact taxes imposed under chapter 125 or convention development
227taxes imposed under s. 212.0305, that county may perform an
228audit of the remarketer with respect to the remarketing
229activity, unless the department is conducting an audit of the
230remarketer's compliance with this chapter for the same period.
231     1.  Prior to the exercise of this authority, and for
232purposes of determining whether a remarketer operates solely
233within one county, a county may presume the localized operation
234if the remarketer reports remarketing activity in a single
235county. Upon notice by the county to the department of an intent
236to audit a dealer, the department shall notify the county within
23760 days if the department has issued a notice of intent to audit
238the remarketer, or the department shall notify the remarketer of
239the county's request to audit.
240     2.  The remarketer may, within 30 days, rebut the single-
241county-operation presumption by providing evidence to the
242department that the remarketer engages in remarketing activity
243in more than one county in the state.
244     3.  If, during the course of an audit conducted under this
245paragraph, a county determines that a remarketer was engaged in
246remarketing activity in regard to transient accommodations
247located in any other county in the state during the period under
248audit, the county shall terminate the audit and notify the
249department of its findings.
250     4.  Counties conducting audits are bound by department
251rules and technical assistance advisements issued during the
252course of an audit conducted under this paragraph. Counties
253conducting audits under this paragraph, or taxpayers being
254audited under this paragraph, may request the department to
255issue a technical assistance advisement under s. 213.22
256regarding a pending audit issue. If the department is requested
257to issue a technical assistance advisement, the department shall
258notify the affected county or taxpayer of the technical
259assistance request.
260     5.  The review, protest, and collection of amounts due
261under chapter 125 or s. 212.0305 as the result of an audit
262performed by a county are the responsibility of the county.
263     6.  The fee or any portion of a fee for audits conducted on
264behalf of a county under this paragraph may not be based upon
265the amount assessed or collected as a result of the audit, and a
266determination based upon an audit conducted in violation of this
267prohibition is valid.
268     7.  All audits performed under this paragraph shall be
269conducted according to the standards adopted by the American
270Institute of Certified Public Accountants, the Institute of
271Internal Auditors, or the Comptroller General of the United
272States insofar as those standards are not inconsistent with
273rules of the department.
274     8.  The department may adopt rules for the notification and
275determination processes established in this paragraph and for
276the information to be provided by a county conducting an audit.
277     Section 2.  Amnesty for registration and remittance of
278tax.--
279     (1)  The state shall provide an amnesty for unpaid taxes,
280penalties, and interest imposed under chapter 125 or chapter
281212, Florida Statutes, on transient rentals if the following
282requirements are met:
283     (a)  The rentals subject to amnesty were made prior to July
2841, 2005.
285     (b)  The rental payments were collected by remarketers who
286are not owners, operators, or managers of the transient rental
287facilities or their agents.
288     (c)  The remarketer who collected the rental payments
289registers with the Department of Revenue to pay taxes on
290transient rentals on or before July 1, 2005.
291     (d)  The remarketer who collected the rental payments
292applies for amnesty within 3 months after July 1, 2005, pursuant
293to rules of the Department of Revenue.
294     (2)  The amnesty is not available for taxes, penalties, or
295interest that have been assessed if the assessment is final and
296has not been timely challenged, or for any taxes, penalties, or
297interest that have been paid to the department unless the
298payment is the subject of an assessment that is not final or
299that has been timely challenged.
300     (3)  The amnesty is not available for tax billed to or
301collected from the consumer who pays for occupancy of the
302transient rental accommodation. The amnesty applies, however, to
303such amounts to the extent that the remarketer who collected the
304rental payments can document that such taxes were remitted to
305the owner or operator of the transient rental accommodation.
306     (4)  The Department of Revenue may adopt emergency rules
307under ss. 120.536(1) and 120.54(4), Florida Statutes, to
308implement the amnesty. Such rules may provide forms and
309procedures for applying for amnesty, for reporting the rentals
310for which amnesty is sought, and for ensuring the applicant's
311ongoing commitment to registration, collection, and remittance
312of the taxes imposed by state law on transient rentals.
313Notwithstanding any other provision of law, the emergency rules
314shall remain effective until 6 months after the date of adoption
315of the rule or the date of final resolution of all amnesty
316applications filed pursuant to this section, whichever occurs
317later.
318     Section 3.  Paragraph (d) of subsection (1) of section
319212.04, Florida Statutes, is amended to read:
320     212.04  Admissions tax; rate, procedure, enforcement.--
321     (1)
322     (d)  No additional tax is due on components incorporated as
323part of a package sold by a travel agent if the package includes
324two or more components such as admissions, transient rentals,
325transportation, or meals; if all of the components were
326purchased by the travel agent from other parties and any sales
327tax due on such purchases was paid; and if there is no separate
328itemization of the admission, transient rental, transportation,
329meal, or other components in the sales price of the package.
330This paragraph does not apply if the actual price charged for a
331component by the dealer to a travel agent is less than the price
332charged to unrelated parties under normal industry practices and
333the dealer and the travel agent are members of the same
334controlled group of corporations for federal income tax
335purposes. For purposes of this paragraph, the term "travel
336agent" means a seller of travel as defined in s. 559.927 which
337has registered with the Department of Agriculture and Consumer
338Services as required by s. 559.928 or obtained a letter of
339exemption from registration from the Department of Agriculture
340and Consumer Services under s. 559.935.
341     Section 4.  Paragraph (a) of subsection (3) of section
342212.18, Florida Statutes, is amended to read:
343     212.18  Administration of law; registration of dealers;
344rules.--
345     (3)(a)  Every person desiring to engage in or conduct
346business in this state as a dealer, as defined in this chapter,
347or to lease, rent, or let or grant licenses in living quarters
348or sleeping or housekeeping accommodations in hotels, apartment
349houses, roominghouses, or tourist or trailer camps that are
350subject to tax under s. 212.03, or to lease, rent, or let or
351grant licenses in real property, as defined in this chapter, and
352every person who sells or receives anything of value by way of
353admissions, must file with the department an application for a
354certificate of registration for each place of business, showing
355the names of the persons who have interests in such business and
356their residences, the address of the business, and such other
357data as the department may reasonably require. However, owners
358and operators of vending machines or newspaper rack machines are
359required to obtain only one certificate of registration for each
360county in which such machines are located. Persons engaged in
361arranging transient accommodations as remarketers described in
362s. 212.03(8)(a) who elect to remit taxes to the department under
363a dual-remittance system described in s. 212.03(11) are required
364to obtain only one certificate of registration in regard to
365their remarketing activities in this state. The department, by
366rule, may authorize a dealer that uses independent sellers to
367sell its merchandise to remit tax on the retail sales price
368charged to the ultimate consumer in lieu of having the
369independent seller register as a dealer and remit the tax. The
370department may appoint the county tax collector as the
371department's agent to accept applications for registrations. The
372application must be made to the department before the person,
373firm, copartnership, or corporation may engage in such business,
374and it must be accompanied by a registration fee of $5. However,
375a registration fee is not required to accompany an application
376to engage in or conduct business to make mail order sales. The
377department may waive the registration fee for applications
378submitted through the department's Internet registration
379process.
380     Section 5.  This act shall take effect July 1, 2005.


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