| 1 | A bill to be entitled |
| 2 | An act relating to the tax on sales, use, and other |
| 3 | transactions; amending s. 212.03, F.S.; clarifying the |
| 4 | meaning of the term "engaging in the business of renting, |
| 5 | leasing, letting, or granting a license to use transient |
| 6 | rental accommodations" for taxation purposes; expanding |
| 7 | the definition of the term "total rent or consideration"; |
| 8 | providing definitions for the terms "discount rate" and |
| 9 | "markup"; requiring persons engaged in renting certain |
| 10 | accommodations to register with the Department of Revenue |
| 11 | as sales tax dealers and collect and remit taxes; |
| 12 | providing that the registered owners or operators of |
| 13 | certain accommodations may agree in writing to report and |
| 14 | remit taxes on behalf of the person engaged in renting the |
| 15 | accommodations; requiring persons engaged in certain |
| 16 | remarketing activities regarding transient rental |
| 17 | accommodations to collect taxes on total rentals; |
| 18 | providing alternate methods for remarketers to remit taxes |
| 19 | to the Department of Revenue; providing for incorporating |
| 20 | transient rentals into vacation packages; providing for |
| 21 | administration by the department of taxes remitted by |
| 22 | remarketers; providing for a local audit under certain |
| 23 | circumstances; providing intent; providing amnesty for |
| 24 | unpaid taxes, penalties, and interest on transient rentals |
| 25 | under certain circumstances; authorizing the department to |
| 26 | adopt emergency rules to implement the amnesty; amending |
| 27 | s. 212.04, F.S.; requiring travel agents to be registered |
| 28 | as a seller of travel; providing for recordkeeping; |
| 29 | amending s. 212.18, F.S.; requiring a single registration |
| 30 | for transient rental remarketers; providing an effective |
| 31 | date. |
| 32 |
|
| 33 | Be It Enacted by the Legislature of the State of Florida: |
| 34 |
|
| 35 | Section 1. Subsections (8), (9), (10), and (11) are added |
| 36 | to section 212.03, Florida Statutes, to read: |
| 37 | 212.03 Transient rentals tax; rate, procedure, |
| 38 | enforcement, exemptions.-- |
| 39 | (8)(a) For purposes of this section and ss. 125.0104, |
| 40 | 125.0108, and 212.0305, the term "engaging in the business of |
| 41 | renting, leasing, letting, or granting a license to use |
| 42 | transient rental accommodations" includes any activity in which |
| 43 | a person offers information about the availability of |
| 44 | accommodations to a customer, arranges for the customer's |
| 45 | occupancy of the accommodations, establishes the total rental |
| 46 | price the customer pays for the accommodations, and collects the |
| 47 | rental payments from the customer. The term "remarketer" means a |
| 48 | person who engages in the activities described in this |
| 49 | subsection. |
| 50 | (b) The terms "total rent" as used in this section, "total |
| 51 | consideration" as used in ss. 125.0104 and 125.0108, and |
| 52 | "consideration" as used in s. 212.0305 have the same meaning. |
| 53 | The terms include the total consideration a customer must pay in |
| 54 | order to use or occupy a transient accommodation, including |
| 55 | service charges or fees that are a condition of occupancy, |
| 56 | except for mandatory fees imposed for the availability of |
| 57 | communications services. Charges or fees paid by a customer to |
| 58 | the person collecting the rent or consideration as a condition |
| 59 | of occupancy are included in the taxable rent or consideration |
| 60 | even if the charges or fees are separately itemized on the |
| 61 | customer's bill or are for items or services provided by a third |
| 62 | party. Charges for items or services provided to occupants of |
| 63 | transient accommodations that are not intrinsic to occupancy of |
| 64 | the accommodation, are provided only upon the election of the |
| 65 | occupant, and are separately itemized are not taxable rent or |
| 66 | consideration. |
| 67 | (c) The term "discount rate" as used in this section means |
| 68 | the rate the registered owner or operator of the accommodation |
| 69 | charges the remarketer for the room. |
| 70 | (d) The term "markup" as used in this section means the |
| 71 | difference 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 |
| 74 | provided in subsection (10), collect and remit taxes on the |
| 75 | total rent charged to their customers, unless the registered |
| 76 | owners or operators of the accommodations agree in writing to |
| 77 | report and remit taxes on their behalf. Any written agreement |
| 78 | must require the person collecting the rent to report total |
| 79 | taxable sales and taxes due and pay the taxes collected to the |
| 80 | owner or operator by the last day of the month in which the |
| 81 | customer pays the rent or the last day of the month in which the |
| 82 | customer completes the occupancy of the accommodation. The owner |
| 83 | or operator shall report and remit the taxes with the owner or |
| 84 | operator's return that is due in the month following the month |
| 85 | in which the taxes are paid to the owner or operator. The owner |
| 86 | or operator is not liable for any tax, penalty, or interest due |
| 87 | as a result of the failure of the person who arranged the |
| 88 | occupancy and collected the rent to accurately report and remit |
| 89 | the taxes imposed by this section or by ss. 125.0104, 125.0108, |
| 90 | and 212.0305. If the owner or operator does not agree to report |
| 91 | and remit taxes on behalf of the person who rents the |
| 92 | accommodations as provided in paragraph (8)(a), that person |
| 93 | shall extend his or her annual resale certificate in lieu of |
| 94 | paying taxes on the amounts he or she pays to the owner or |
| 95 | operator for the accommodations. The department may provide by |
| 96 | rule for a single registration by a person engaged in the |
| 97 | activities described in paragraph (8)(a) rather than require |
| 98 | separate registrations for each location where transient rental |
| 99 | accommodations are located. Such person may file consolidated |
| 100 | returns as provided in s. 212.11(1)(e). |
| 101 | (10)(a) Remarketers shall collect taxes on the total rent |
| 102 | collected from their customers. A remarketer may elect to remit |
| 103 | the taxes as provided in paragraph (b) or in paragraph (c). A |
| 104 | remarketer shall remit all taxes collected under this section in |
| 105 | the same manner. |
| 106 | (b)1. A remarketer may elect to remit under a dual- |
| 107 | remittance system. The remarketer electing this method shall |
| 108 | register with the department as a dealer for purposes of this |
| 109 | chapter. The remarketer shall remit to the owner or operator of |
| 110 | any transient rental accommodations occupied by a customer of |
| 111 | the remarketer the taxes due under chapter 125 and under this |
| 112 | chapter at the discount rate at the time of payment of that rate |
| 113 | to the owner or operator. The owner or operator shall report and |
| 114 | remit the total taxes received from the remarketer with the next |
| 115 | return due after the month in which the owner or operator |
| 116 | receives payment from the remarketer. The remarketer shall |
| 117 | report and remit to the department the taxes due under chapter |
| 118 | 125 and under this chapter on the markup. The taxes must be |
| 119 | reported on and remitted with the first return due from the |
| 120 | remarketer after the month in which the customer pays the rental |
| 121 | to the remarketer. |
| 122 | 2. The remarketer shall provide a copy of its dealer |
| 123 | registration certificate to the owner or operator of any |
| 124 | transient rental accommodations with which the remarketer has |
| 125 | entered a contractual remarketing arrangement to evidence the |
| 126 | remarketer's election to remit taxes directly to the department |
| 127 | on the markup. If a remarketer that has a contractual |
| 128 | remarketing arrangement with the owner or operator does not |
| 129 | provide the certificate, the owner or operator shall collect and |
| 130 | remit taxes under the single remittance system described in |
| 131 | paragraph (c), unless the remarketer provides the documentation |
| 132 | described in paragraph (d) concerning use of transient |
| 133 | accommodations as components of vacation packages. |
| 134 | (c) A remarketer may elect to remit under a single |
| 135 | remittance system. The remarketer electing this method shall |
| 136 | disclose to the owner or operator of the transient rental |
| 137 | accommodations the total rental paid by the remarketer's |
| 138 | customer and remit the taxes on the total rental to the owner or |
| 139 | operator with the payment of the discount rate. If the |
| 140 | remarketer does not disclose the total rental received from the |
| 141 | customer, the remarketer shall remit to the owner or operator |
| 142 | taxes on 135 percent of the discount rate or, if a written |
| 143 | contract between the remarketer and the owner or operator |
| 144 | establishes a lesser maximum amount, the remarketer may charge |
| 145 | as total rental to the customer tax on the maximum amount. The |
| 146 | owner or operator shall report and remit the total taxes |
| 147 | received from the remarketer with the next return due after the |
| 148 | month in which the owner or operator receives the payment. The |
| 149 | owner or operator is not liable for any tax, penalty, or |
| 150 | interest due if the remarketer fails to accurately report and |
| 151 | remit the taxes imposed by this section or by ss. 125.0104, |
| 152 | 125.0108, and 212.0305. The owner or operator shall maintain in |
| 153 | its records the information provided by the remarketer for the |
| 154 | period of time for which the return in which that information is |
| 155 | reflected is subject to audit by the department. |
| 156 | (d) If a remarketer is a travel agent within the meaning |
| 157 | of s. 212.04(1)(d), the remarketer may treat transient |
| 158 | accommodations as component parts of vacation packages when the |
| 159 | requirements of that provision are met. A remarketer that |
| 160 | operates under a single remittance system may furnish a copy of |
| 161 | the remarketer's certificate of registration as a seller of |
| 162 | travel or letter of exemption from registration as a seller of |
| 163 | travel to the owner or operator of accommodations that are |
| 164 | incorporated as component parts of vacation packages to |
| 165 | establish that the accommodations are not subject to the |
| 166 | disclosure and tax collection requirements of paragraph (c). |
| 167 | (e) The owner or operator of transient accommodations has |
| 168 | no obligation to inquire whether a person that rents transient |
| 169 | accommodations is acting as a remarketer in regard to those |
| 170 | accommodations. The obligations imposed on an owner or operator |
| 171 | by this subsection arise only if there is a contractual |
| 172 | remarketing arrangement between the owner or operator and the |
| 173 | person that rents transient accommodation from the owner or |
| 174 | operator. |
| 175 | (11)(a)1. The department shall administer, collect, and |
| 176 | enforce all taxes remitted by remarketers on the markup under a |
| 177 | dual-remittance system, including interest and penalties |
| 178 | attributable to such taxes, regardless of whether the taxes are |
| 179 | imposed under this chapter or chapter 125. Notwithstanding any |
| 180 | election made by a county to self-administer local taxes under |
| 181 | chapter 125 or s. 212.0305, each remarketer obligated to collect |
| 182 | and remit one or more local taxes on transient accommodations |
| 183 | imposed under chapter 125 or s. 212.0305 under a dual-remittance |
| 184 | system shall separately report and identify each tax to the |
| 185 | department, by jurisdiction, on a form prescribed by the |
| 186 | department, and shall pay the taxes to the department. A |
| 187 | remarketer may include in a single payment to the department the |
| 188 | total amount of all state and local taxes on the markup on |
| 189 | transient rentals imposed under this chapter and chapter 125. |
| 190 | 2. The department shall keep records showing the amount of |
| 191 | taxes collected, which records shall also include records |
| 192 | disclosing the amount of taxes collected for each county in |
| 193 | which the tax authorized by this section is applicable. These |
| 194 | records shall be open for inspection during the regular office |
| 195 | hours of the department, subject to s. 213.053. Proceeds |
| 196 | received by the department from the taxes, less costs of |
| 197 | administration of this section, shall be paid and returned |
| 198 | monthly to the county that imposed the tax, for use by the |
| 199 | county according to the section under which the tax was imposed. |
| 200 | The proceeds shall be paid to the county in the month after |
| 201 | which they are received by the department in the same manner as |
| 202 | other taxes imposed under chapter 125 which are administered by |
| 203 | the department. For purposes of this section, the proceeds of |
| 204 | any tax levied by a county under chapter 125 or s. 212.0305 are |
| 205 | all funds collected and received by the department under a |
| 206 | specific levy authorized by this chapter or section, including |
| 207 | any interest and penalties attributable to the tax levy. |
| 208 | (b) Audits performed by the department shall include a |
| 209 | determination of whether the rates collected for applicable |
| 210 | local tourist development taxes, tourist impact taxes, and |
| 211 | convention development taxes are correct. A person or entity |
| 212 | designated by a county to receive information from the |
| 213 | department under s. 213.0535 may provide evidence to the |
| 214 | department demonstrating a specific person's failure to fully or |
| 215 | correctly report taxable remarketing activities within the |
| 216 | jurisdiction, including evidence discovered in a county's audit |
| 217 | of a transient rental owner or operator under chapter 125 or s. |
| 218 | 212.0305. The department may request additional information from |
| 219 | the designee to assist in any review. The department shall |
| 220 | inform the designee of what action, if any, the department |
| 221 | intends to take regarding the person. |
| 222 | (c) Notwithstanding paragraph (a), if a remarketer engages |
| 223 | in remarketing activities solely in regard to transient |
| 224 | accommodations located within a single county in the state and |
| 225 | that county self-administers tourist development or tourist |
| 226 | impact taxes imposed under chapter 125 or convention development |
| 227 | taxes imposed under s. 212.0305, that county may perform an |
| 228 | audit of the remarketer with respect to the remarketing |
| 229 | activity, unless the department is conducting an audit of the |
| 230 | remarketer's compliance with this chapter for the same period. |
| 231 | 1. Prior to the exercise of this authority, and for |
| 232 | purposes of determining whether a remarketer operates solely |
| 233 | within one county, a county may presume the localized operation |
| 234 | if the remarketer reports remarketing activity in a single |
| 235 | county. Upon notice by the county to the department of an intent |
| 236 | to audit a dealer, the department shall notify the county within |
| 237 | 60 days if the department has issued a notice of intent to audit |
| 238 | the remarketer, or the department shall notify the remarketer of |
| 239 | the county's request to audit. |
| 240 | 2. The remarketer may, within 30 days, rebut the single- |
| 241 | county-operation presumption by providing evidence to the |
| 242 | department that the remarketer engages in remarketing activity |
| 243 | in more than one county in the state. |
| 244 | 3. If, during the course of an audit conducted under this |
| 245 | paragraph, a county determines that a remarketer was engaged in |
| 246 | remarketing activity in regard to transient accommodations |
| 247 | located in any other county in the state during the period under |
| 248 | audit, the county shall terminate the audit and notify the |
| 249 | department of its findings. |
| 250 | 4. Counties conducting audits are bound by department |
| 251 | rules and technical assistance advisements issued during the |
| 252 | course of an audit conducted under this paragraph. Counties |
| 253 | conducting audits under this paragraph, or taxpayers being |
| 254 | audited under this paragraph, may request the department to |
| 255 | issue a technical assistance advisement under s. 213.22 |
| 256 | regarding a pending audit issue. If the department is requested |
| 257 | to issue a technical assistance advisement, the department shall |
| 258 | notify the affected county or taxpayer of the technical |
| 259 | assistance request. |
| 260 | 5. The review, protest, and collection of amounts due |
| 261 | under chapter 125 or s. 212.0305 as the result of an audit |
| 262 | performed by a county are the responsibility of the county. |
| 263 | 6. The fee or any portion of a fee for audits conducted on |
| 264 | behalf of a county under this paragraph may not be based upon |
| 265 | the amount assessed or collected as a result of the audit, and a |
| 266 | determination based upon an audit conducted in violation of this |
| 267 | prohibition is valid. |
| 268 | 7. All audits performed under this paragraph shall be |
| 269 | conducted according to the standards adopted by the American |
| 270 | Institute of Certified Public Accountants, the Institute of |
| 271 | Internal Auditors, or the Comptroller General of the United |
| 272 | States insofar as those standards are not inconsistent with |
| 273 | rules of the department. |
| 274 | 8. The department may adopt rules for the notification and |
| 275 | determination processes established in this paragraph and for |
| 276 | the information to be provided by a county conducting an audit. |
| 277 | Section 2. Amnesty for registration and remittance of |
| 278 | tax.-- |
| 279 | (1) The state shall provide an amnesty for unpaid taxes, |
| 280 | penalties, and interest imposed under chapter 125 or chapter |
| 281 | 212, Florida Statutes, on transient rentals if the following |
| 282 | requirements are met: |
| 283 | (a) The rentals subject to amnesty were made prior to July |
| 284 | 1, 2005. |
| 285 | (b) The rental payments were collected by remarketers who |
| 286 | are not owners, operators, or managers of the transient rental |
| 287 | facilities or their agents. |
| 288 | (c) The remarketer who collected the rental payments |
| 289 | registers with the Department of Revenue to pay taxes on |
| 290 | transient rentals on or before July 1, 2005. |
| 291 | (d) The remarketer who collected the rental payments |
| 292 | applies for amnesty within 3 months after July 1, 2005, pursuant |
| 293 | to rules of the Department of Revenue. |
| 294 | (2) The amnesty is not available for taxes, penalties, or |
| 295 | interest that have been assessed if the assessment is final and |
| 296 | has not been timely challenged, or for any taxes, penalties, or |
| 297 | interest that have been paid to the department unless the |
| 298 | payment is the subject of an assessment that is not final or |
| 299 | that has been timely challenged. |
| 300 | (3) The amnesty is not available for tax billed to or |
| 301 | collected from the consumer who pays for occupancy of the |
| 302 | transient rental accommodation. The amnesty applies, however, to |
| 303 | such amounts to the extent that the remarketer who collected the |
| 304 | rental payments can document that such taxes were remitted to |
| 305 | the owner or operator of the transient rental accommodation. |
| 306 | (4) The Department of Revenue may adopt emergency rules |
| 307 | under ss. 120.536(1) and 120.54(4), Florida Statutes, to |
| 308 | implement the amnesty. Such rules may provide forms and |
| 309 | procedures for applying for amnesty, for reporting the rentals |
| 310 | for which amnesty is sought, and for ensuring the applicant's |
| 311 | ongoing commitment to registration, collection, and remittance |
| 312 | of the taxes imposed by state law on transient rentals. |
| 313 | Notwithstanding any other provision of law, the emergency rules |
| 314 | shall remain effective until 6 months after the date of adoption |
| 315 | of the rule or the date of final resolution of all amnesty |
| 316 | applications filed pursuant to this section, whichever occurs |
| 317 | later. |
| 318 | Section 3. Paragraph (d) of subsection (1) of section |
| 319 | 212.04, 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 |
| 323 | part of a package sold by a travel agent if the package includes |
| 324 | two or more components such as admissions, transient rentals, |
| 325 | transportation, or meals; if all of the components were |
| 326 | purchased by the travel agent from other parties and any sales |
| 327 | tax due on such purchases was paid; and if there is no separate |
| 328 | itemization of the admission, transient rental, transportation, |
| 329 | meal, or other components in the sales price of the package. |
| 330 | This paragraph does not apply if the actual price charged for a |
| 331 | component by the dealer to a travel agent is less than the price |
| 332 | charged to unrelated parties under normal industry practices and |
| 333 | the dealer and the travel agent are members of the same |
| 334 | controlled group of corporations for federal income tax |
| 335 | purposes. For purposes of this paragraph, the term "travel |
| 336 | agent" means a seller of travel as defined in s. 559.927 which |
| 337 | has registered with the Department of Agriculture and Consumer |
| 338 | Services as required by s. 559.928 or obtained a letter of |
| 339 | exemption from registration from the Department of Agriculture |
| 340 | and Consumer Services under s. 559.935. |
| 341 | Section 4. Paragraph (a) of subsection (3) of section |
| 342 | 212.18, Florida Statutes, is amended to read: |
| 343 | 212.18 Administration of law; registration of dealers; |
| 344 | rules.-- |
| 345 | (3)(a) Every person desiring to engage in or conduct |
| 346 | business in this state as a dealer, as defined in this chapter, |
| 347 | or to lease, rent, or let or grant licenses in living quarters |
| 348 | or sleeping or housekeeping accommodations in hotels, apartment |
| 349 | houses, roominghouses, or tourist or trailer camps that are |
| 350 | subject to tax under s. 212.03, or to lease, rent, or let or |
| 351 | grant licenses in real property, as defined in this chapter, and |
| 352 | every person who sells or receives anything of value by way of |
| 353 | admissions, must file with the department an application for a |
| 354 | certificate of registration for each place of business, showing |
| 355 | the names of the persons who have interests in such business and |
| 356 | their residences, the address of the business, and such other |
| 357 | data as the department may reasonably require. However, owners |
| 358 | and operators of vending machines or newspaper rack machines are |
| 359 | required to obtain only one certificate of registration for each |
| 360 | county in which such machines are located. Persons engaged in |
| 361 | arranging transient accommodations as remarketers described in |
| 362 | s. 212.03(8)(a) who elect to remit taxes to the department under |
| 363 | a dual-remittance system described in s. 212.03(11) are required |
| 364 | to obtain only one certificate of registration in regard to |
| 365 | their remarketing activities in this state. The department, by |
| 366 | rule, may authorize a dealer that uses independent sellers to |
| 367 | sell its merchandise to remit tax on the retail sales price |
| 368 | charged to the ultimate consumer in lieu of having the |
| 369 | independent seller register as a dealer and remit the tax. The |
| 370 | department may appoint the county tax collector as the |
| 371 | department's agent to accept applications for registrations. The |
| 372 | application must be made to the department before the person, |
| 373 | firm, copartnership, or corporation may engage in such business, |
| 374 | and it must be accompanied by a registration fee of $5. However, |
| 375 | a registration fee is not required to accompany an application |
| 376 | to engage in or conduct business to make mail order sales. The |
| 377 | department may waive the registration fee for applications |
| 378 | submitted through the department's Internet registration |
| 379 | process. |
| 380 | Section 5. This act shall take effect July 1, 2005. |