Senate Bill sb1602er

    ENROLLED

    2005 Legislature                                CS for SB 1602



  1                                 

  2         An act relating to state tax funds; amending s.

  3         213.756, F.S.; establishing a burden of proof

  4         for certain refund claims; establishing a

  5         measure of damages for certain refund claims;

  6         specifying an affirmative defense to certain

  7         actions by a purchaser to recover taxes or for

  8         a refund of taxes; providing application;

  9         providing construction; providing severability;

10         providing for retroactive application;

11         providing an effective date.

12  

13  Be It Enacted by the Legislature of the State of Florida:

14  

15         Section 1.  Section 213.756, Florida Statutes, is

16  amended to read:

17         213.756  Funds collected are state tax funds.--

18         (1)  Funds collected from a purchaser under the

19  representation that they are taxes provided for under the

20  state revenue laws are state funds from the moment of

21  collection and are not subject to refund absent proof that

22  such funds have been refunded previously to the purchaser.

23         (2)(a)  In any action by a purchaser against a

24  retailer, dealer, or vendor to obtain a refund of or to

25  otherwise recover taxes, fees, or surcharges collected by the

26  retailer, dealer, or vendor from the purchaser:

27         1.  The purchaser in the action has the burden of

28  proving all elements of its claim for a refund by clear and

29  convincing evidence;

30         2.  The sole remedy in the action is damages measured

31  by the difference between what the retailer, dealer, or vendor


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




    ENROLLED

    2005 Legislature                                CS for SB 1602



 1  collected as a tax, fee, or surcharge and what the retailer,

 2  dealer, or vendor paid to the taxing authority plus any

 3  discount or collection allowance authorized by law and taken

 4  by the retailer, dealer, or vendor; and

 5         3.  It is an affirmative defense to the action when the

 6  retailer, dealer, or vendor remitted the amount collected from

 7  the purchaser to the appropriate taxing authority, less any

 8  discount or collection allowance authorized by law.

 9         (b)  This subsection applies to those taxes enumerated

10  in s. 72.011, excluding chapter 202 and that portion of

11  chapter 203 collected thereunder, and also applies to taxes

12  imposed under chapter 205.

13         (c)  This subsection does not change the law regarding

14  standing to claim a refund.

15         Section 2.  If any provision of this act or the

16  application thereof to any person or circumstance is held

17  invalid, the invalidity does not affect other provisions or

18  applications of the act which can be given effect without the

19  invalid provision or application and, to this end, the

20  provisions of this act are severable.

21         Section 3.  This act shall take effect July 1, 2005,

22  and shall apply retroactively to all actions initiated on or

23  after such date and, to the maximum extent authorized by law,

24  to all actions pending as of such date.

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