Senate Bill sb2070

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    Florida Senate - 2005                                  SB 2070

    By Senator Constantine





    22-1208A-05

  1                      A bill to be entitled

  2         An act relating to the tax on substitute

  3         communications systems; amending s. 202.11,

  4         F.S.; deleting certain definitions; amending s.

  5         202.12, F.S.; deleting a provision relating to

  6         the manner in which the tax on gross receipts

  7         for communications services is applied to a

  8         substitute communications system; amending ss.

  9         202.16, 202.17, and 202.18, F.S.; conforming

10         cross-references; repealing s. 202.19(7), F.S.,

11         relating to imposing a local communications

12         services tax on substitute communications

13         systems; amending s. 203.01, F.S.; deleting a

14         provision imposing a gross receipts tax on the

15         actual costs of operating substitute

16         communications systems; amending s. 624.105,

17         F.S.; conforming a cross-reference; specifying

18         that the retroactive operation is remedial and

19         does not create any right to or require any

20         refunds; repealing s. 202.15, F.S., relating to

21         special rules for users of substitute

22         communications systems; providing an effective

23         date.

24  

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

26  

27         Section 1.  Section 202.11, Florida Statutes, is

28  amended to read:

29         202.11  Definitions.--As used in this chapter:

30         (1)  "Actual cost of operating a substitute

31  communications system" includes, but is not limited to,

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 1  depreciation, interest, maintenance, repair, and other

 2  expenses directly attributable to the operation of such

 3  system. For purposes of this chapter, the depreciation expense

 4  included in actual cost is the depreciation expense claimed

 5  for federal income tax purposes. The total amount of any

 6  payment required by a lease or rental contract or agreement

 7  must be included within the actual cost of operating the

 8  substitute communications system.

 9         (1)(2)  "Cable service" means the transmission of

10  video, audio, or other programming service to purchasers, and

11  the purchaser interaction, if any, required for the selection

12  or use of any such programming service, regardless of whether

13  the programming is transmitted over facilities owned or

14  operated by the cable service provider or over facilities

15  owned or operated by one or more other dealers of

16  communications services. The term includes point-to-point and

17  point-to-multipoint distribution services by which programming

18  is transmitted or broadcast by microwave or other equipment

19  directly to the purchaser's premises, but does not include

20  direct-to-home satellite service. The term includes basic,

21  extended, premium, pay-per-view, digital, and music services.

22         (2)(3)  "Communications services" means the

23  transmission, conveyance, or routing of voice, data, audio,

24  video, or any other information or signals, including cable

25  services, to a point, or between or among points, by or

26  through any electronic, radio, satellite, cable, optical,

27  microwave, or other medium or method now in existence or

28  hereafter devised, regardless of the protocol used for the

29  such transmission or conveyance. The term does not include:

30         (a)  Information services.

31  

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 1         (b)  Installation or maintenance of wiring or equipment

 2  on a customer's premises.

 3         (c)  The sale or rental of tangible personal property.

 4         (d)  The sale of advertising, including, but not

 5  limited to, directory advertising.

 6         (e)  Bad check charges.

 7         (f)  Late payment charges.

 8         (g)  Billing and collection services.

 9         (h)  Internet access service, electronic mail service,

10  electronic bulletin board service, or similar on-line computer

11  services.

12         (3)(4)  "Dealer" means a person registered with the

13  department as a provider of communications services in this

14  state.

15         (4)(5)  "Department" means the Department of Revenue.

16         (5)(6)  "Direct-to-home satellite service" has the

17  meaning ascribed in the Communications Act of 1934, 47 U.S.C.

18  s. 303(v).

19         (6)(7)  "Information service" means the offering of a

20  capability for generating, acquiring, storing, transforming,

21  processing, retrieving, using, or making available information

22  via communications services, including, but not limited to,

23  electronic publishing, web-hosting service, and end-user 900

24  number service. The term does not include any video, audio, or

25  other programming service that uses point-to-multipoint

26  distribution by which programming is delivered, transmitted,

27  or broadcast by any means, including any interaction that may

28  be necessary for selecting and using the service, regardless

29  of whether the programming is delivered, transmitted, or

30  broadcast over facilities owned or operated by the seller or

31  another, or whether denominated as cable service or as basic,

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 1  extended, premium, pay-per-view, digital, music, or two-way

 2  cable service.

 3         (7)(8)  "Mobile communications service" means

 4  commercial mobile radio service, as defined in 47 C.F.R. s.

 5  20.3 as in effect on June 1, 1999. The term does not include

 6  air-ground radiotelephone service as defined in 47 C.F.R. s.

 7  22.99 as in effect on June 1, 1999.

 8         (8)(9)  "Person" has the meaning ascribed in s. 212.02.

 9         (9)(10)  "Prepaid calling arrangement" means the

10  separately stated retail sale by advance payment of

11  communications services that consist exclusively of telephone

12  calls originated by using an access number, authorization

13  code, or other means that may be manually, electronically, or

14  otherwise entered, and that are sold in predetermined units or

15  dollars of which the number declines with use in a known

16  amount.

17         (10)(11)  "Purchaser" means the person paying for or

18  obligated to pay for communications services.

19         (11)(12)  "Retail sale" means the sale of

20  communications services for any purpose other than for resale

21  or for use as a component part of or for integration into

22  communications services to be resold in the ordinary course of

23  business. However, any sale for resale must comply with s.

24  202.16(2) and the rules adopted thereunder.

25         (12)(13)  "Sale" means the provision of communications

26  services for a consideration.

27         (13)(14)  "Sales price" means the total amount charged

28  in money or other consideration by a dealer for the sale of

29  the right or privilege of using communications services in

30  this state, including any property or other services that are

31  part of the sale. The sales price of communications services

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 1  may shall not be reduced by any separately identified

 2  components of the charge that constitute expenses of the

 3  dealer, including, but not limited to, sales taxes on goods or

 4  services purchased by the dealer, property taxes, taxes

 5  measured by net income, and universal-service fund fees.

 6         (a)  The sales price of communications services shall

 7  include, whether or not separately stated, charges for any of

 8  the following:

 9         1.  The connection, movement, change, or termination of

10  communications services.

11         2.  The detailed billing of communications services.

12         3.  The sale of directory listings in connection with a

13  communications service.

14         4.  Central office and custom calling features.

15         5.  Voice mail and other messaging service.

16         6.  Directory assistance.

17         7.  The service of sending or receiving a document

18  commonly referred to as a facsimile or "fax," except when

19  performed during the course of providing professional or

20  advertising services.

21         (b)  The sales price of communications services does

22  not include charges for any of the following:

23         1.  Any excise tax, sales tax, or similar tax levied by

24  the United States or any state or local government on the

25  purchase, sale, use, or consumption of any communications

26  service, including, but not limited to, any tax imposed under

27  this chapter or chapter 203 which is permitted or required to

28  be added to the sales price of such service, if the tax is

29  stated separately.

30         2.  Any fee or assessment levied by the United States

31  or any state or local government, including, but not limited

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 1  to, regulatory fees and emergency telephone surcharges, which

 2  is required to be added to the price of such service if the

 3  fee or assessment is separately stated.

 4         3.  Communications services paid for by inserting coins

 5  into coin-operated communications devices available to the

 6  public.

 7         4.  The sale or recharge of a prepaid calling

 8  arrangement.

 9         5.  The provision of air-to-ground communications

10  services, defined as a radio service provided to purchasers

11  while on board an aircraft.

12         6.  A dealer's internal use of communications services

13  in connection with its business of providing communications

14  services.

15         7.  Charges for property or other services that are not

16  part of the sale of communications services, if such charges

17  are stated separately from the charges for communications

18  services.

19         (14)(15)  "Service address" means:

20         (a)  Except as otherwise provided in this section, the

21  location of the communications equipment from which

22  communications services originate or at which communications

23  services are received by the customer. In the case of a

24  communications service paid through a credit or payment

25  mechanism that does not relate to a service address, such as a

26  bank, travel, debit, or credit card, and in the case of

27  third-number and calling-card calls, the service address is

28  the address of the central office, as determined by the area

29  code and the first three digits of the seven-digit originating

30  telephone number.

31  

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 1         (b)  In the case of cable services and direct-to-home

 2  satellite services, the location where the customer receives

 3  the services in this state.

 4         (c)  In the case of mobile communications services, the

 5  customer's place of primary use.

 6         (16)  "Substitute communications system" means any

 7  telephone system, or other system capable of providing

 8  communications services, which a person purchases, installs,

 9  rents, or leases for his or her own use to provide himself or

10  herself with services used as a substitute for any switched

11  service or dedicated facility by which a dealer of

12  communications services provides a communication path.

13         (15)(17)  "Unbundled network element" means a network

14  element, as defined in 47 U.S.C. s. 153(29), to which access

15  is provided on an unbundled basis under pursuant to 47 U.S.C.

16  s. 251(c)(3).

17         (16)(18)  "Private communications service" means a

18  communications service that entitles the subscriber or user to

19  exclusive or priority use of a communications channel or group

20  of channels between or among channel termination points,

21  regardless of the manner in which the such channel or channels

22  are connected, and includes switching capacity, extension

23  lines, stations, and any other associated services which are

24  provided in connection with the use of such channel or

25  channels.

26         (17)(19)(a)  "Customer" means:

27         1.  The person or entity that contracts with the home

28  service provider for mobile communications services; or

29         2.  If the end user of mobile communications services

30  is not the contracting party, the end user of the mobile

31  

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 1  communications service. This subparagraph only applies for the

 2  purpose of determining the place of primary use.

 3         (b)  "Customer" does not include:

 4         1.  A reseller of mobile communications services; or

 5         2.  A serving carrier under an agreement to serve the

 6  customer outside the home service provider's licensed service

 7  area.

 8         (18)(20)  "Enhanced zip code" means a United States

 9  postal zip code of 9 or more digits.

10         (19)(21)  "Home service provider" means the

11  facilities-based carrier or reseller with which the customer

12  contracts for the provision of mobile communications services.

13         (20)(22)  "Licensed service area" means the geographic

14  area in which the home service provider is authorized by law

15  or contract to provide mobile communications service to the

16  customer.

17         (21)(23)  "Place of primary use" means the street

18  address representative of where the customer's use of the

19  mobile communications service primarily occurs, which must be:

20         (a)  The residential street address or the primary

21  business street address of the customer; and

22         (b)  Within the licensed service area of the home

23  service provider.

24         (22)(24)(a)  "Reseller" means a provider who purchases

25  communications services from another communications service

26  provider and then resells, uses as a component part of, or

27  integrates the purchased services into a mobile communications

28  service.

29         (b)  "Reseller" does not include a serving carrier with

30  which a home service provider arranges for the services to its

31  

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 1  customers outside the home service provider's licensed service

 2  area.

 3         (23)(25)  "Serving carrier" means a facilities-based

 4  carrier providing mobile communications service to a customer

 5  outside a home service provider's or reseller's licensed

 6  service area.

 7         Section 2.  Subsections (1) and (2) of section 202.12,

 8  Florida Statutes, are amended to read:

 9         202.12  Sales of communications services.--The

10  Legislature finds that every person who engages in the

11  business of selling communications services at retail in this

12  state is exercising a taxable privilege. It is the intent of

13  the Legislature that the tax imposed by chapter 203 be

14  administered as provided in this chapter.

15         (1)  For the exercise of the such privilege, a tax is

16  levied on each taxable transaction, and the tax is due and

17  payable as follows:

18         (a)  Except as otherwise provided in this subsection,

19  at a rate of 6.8 percent applied to the sales price of the

20  communications service which:

21         1.  Originates and terminates in this state, or

22         2.  Originates or terminates in this state and is

23  charged to a service address in this state,

24  

25  when sold at retail, computed on each taxable sale for the

26  purpose of remitting the tax due. The gross receipts tax

27  imposed by chapter 203 shall be collected on the same taxable

28  transactions and remitted with the tax imposed by this

29  paragraph. If no tax is imposed by this paragraph by reason of

30  s. 202.125(1), the tax imposed by chapter 203 shall

31  nevertheless be collected and remitted in the manner and at

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 1  the time prescribed for tax collections and remittances under

 2  this chapter.

 3         (b)  At the rate set forth in paragraph (a) on the

 4  actual cost of operating a substitute communications system,

 5  to be paid in accordance with s. 202.15. This paragraph does

 6  not apply to the use by any dealer of his or her own

 7  communications system to conduct a business of providing

 8  communications services or any communications system operated

 9  by a county, a municipality, the state, or any political

10  subdivision of the state. The gross receipts tax imposed by

11  chapter 203 shall be applied to the same costs, and remitted

12  with the tax imposed by this paragraph.

13         (b)(c)  At the rate of 10.8 percent on the retail sales

14  price of any direct-to-home satellite service received in this

15  state. The proceeds of the tax imposed under this paragraph

16  shall be accounted for and distributed in accordance with s.

17  202.18(2). The gross receipts tax imposed by chapter 203 shall

18  be collected on the same taxable transactions and remitted

19  with the tax imposed by this paragraph.

20         (c)(d)  At the rate set forth in paragraph (a) on the

21  sales price of private communications services provided within

22  this state, which shall be determined in accordance with the

23  following provisions:

24         1.  Any charge with respect to a channel termination

25  point located within this state;

26         2.  Any charge for the use of a channel between two

27  channel termination points located in this state; and

28         3.  Where channel termination points are located both

29  within and outside of this state:

30  

31  

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 1         a.  If any segment between two such channel termination

 2  points is separately billed, 50 percent of the such charge;

 3  and

 4         b.  If any segment of the circuit is not separately

 5  billed, an amount equal to the total charge for such circuit

 6  multiplied by a fraction, the numerator of which is the number

 7  of channel termination points within this state and the

 8  denominator of which is the total number of channel

 9  termination points of the circuit.

10  

11  The gross receipts tax imposed by chapter 203 shall be

12  collected on the same taxable transactions and remitted with

13  the tax imposed by this paragraph.

14         (d)(e)  At the rate set forth in paragraph (a) applied

15  to the sales price of all mobile communications services

16  deemed to be provided to a customer by a home service provider

17  under pursuant to s. 117(a) of the Mobile Telecommunications

18  Sourcing Act, Pub. L. No. 106-252, if the such customer's

19  service address is located within this state.

20         (2)  A dealer of taxable communications services shall

21  bill, collect, and remit the taxes on communications services

22  imposed under pursuant to chapter 203 and this section at a

23  combined rate that is the sum of the rate of tax on

24  communications services prescribed in chapter 203 and the

25  applicable rate of tax prescribed in this section. Each dealer

26  subject to the tax provided in paragraph (1)(b) shall also

27  remit the taxes imposed pursuant to chapter 203 and this

28  section on a combined basis. However, a dealer shall, in

29  reporting each remittance to the department, identify the

30  portion thereof which consists of taxes remitted under

31  

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 1  pursuant to chapter 203. Return forms prescribed by the

 2  department shall facilitate the such reporting.

 3         Section 3.  Paragraph (a) of subsection (1) of section

 4  202.16, Florida Statutes, is amended to read:

 5         202.16  Payment.--The taxes imposed or administered

 6  under this chapter and chapter 203 shall be collected from all

 7  dealers of taxable communications services on the sale at

 8  retail in this state of communications services taxable under

 9  this chapter and chapter 203. The full amount of the taxes on

10  a credit sale, installment sale, or sale made on any kind of

11  deferred payment plan is due at the moment of the transaction

12  in the same manner as a cash sale.

13         (1)(a)  Except as otherwise provided in ss.

14  202.12(1)(b) and 202.15, The taxes collected under this

15  chapter and chapter 203 shall be paid by the purchaser of the

16  communications service and shall be collected from the such

17  person by the dealer of communications services.

18         Section 4.  Subsection (6) of section 202.17, Florida

19  Statutes, is amended to read:

20         202.17  Registration.--

21         (6)  In addition to the certificate of registration,

22  the department shall provide to each newly registered dealer

23  an initial resale certificate that is valid for the remainder

24  of the period of issuance. The department shall provide to

25  each active dealer, except persons registered pursuant to s.

26  202.15, an annual resale certificate. As used in this section,

27  "active dealer" means a person who is registered with the

28  department and who is required to file a return at least once

29  during each applicable reporting period.

30         Section 5.  Subsections (1) and (2) of section 202.18,

31  Florida Statutes, are amended to read:

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 1         202.18  Allocation and disposition of tax

 2  proceeds.--The proceeds of the communications services taxes

 3  remitted under this chapter shall be treated as follows:

 4         (1)  The proceeds of the taxes remitted under s.

 5  202.12(1)(a) and (b) shall be divided as follows:

 6         (a)  The portion of the such proceeds which constitutes

 7  gross receipts taxes, imposed at the rate prescribed in

 8  chapter 203, shall be deposited as provided by law and in

 9  accordance with s. 9, Art. XII of the State Constitution.

10         (b)  The remaining portion shall be distributed

11  according to s. 212.20(6).

12         (2)  The proceeds of the taxes remitted under s.

13  202.12(1)(b) s. 202.12(1)(c) shall be divided as follows:

14         (a)  The portion of the such proceeds which constitutes

15  gross receipts taxes, imposed at the rate prescribed in

16  chapter 203, shall be deposited as provided by law and in

17  accordance with s. 9, Art. XII of the State Constitution.

18         (b)  Sixty-three percent of the remainder shall be

19  allocated to the state and distributed under pursuant to s.

20  212.20(6), except that the proceeds allocated under pursuant

21  to s. 212.20(6)(d)3. shall be prorated to the participating

22  counties in the same proportion as that month's collection of

23  the taxes and fees imposed under pursuant to chapter 212 and

24  paragraph (1)(b).

25         (c)1.  During each calendar year, the remaining portion

26  of the such proceeds shall be transferred to the Local

27  Government Half-cent Sales Tax Clearing Trust Fund and shall

28  be allocated in the same proportion as the allocation of total

29  receipts of the half-cent sales tax under s. 218.61 and the

30  emergency distribution under s. 218.65 in the prior state

31  fiscal year.

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 1         2.  The proportion of the proceeds allocated based on

 2  the emergency distribution under s. 218.65 shall be

 3  distributed under pursuant to s. 218.65.

 4         3.  In each calendar year, the proportion of the

 5  proceeds allocated based on the half-cent sales tax under s.

 6  218.61 shall be allocated to each county in the same

 7  proportion as the county's percentage of total sales tax

 8  allocation for the prior state fiscal year and distributed

 9  under pursuant to s. 218.62.

10         4.  The department shall distribute the appropriate

11  amount to each municipality and county each month at the same

12  time that local communications services taxes are distributed

13  under pursuant to subsection (3).

14         Section 6.  Subsection (7) of section 202.19, Florida

15  Statutes, is repealed.

16         Section 7.  Paragraph (a) of subsection (1) of section

17  203.01, Florida Statutes, is amended to read:

18         203.01  Tax on gross receipts for utility and

19  communications services.--

20         (1)(a)1.  Every person who that receives payment for

21  any utility service shall report by the last day of each month

22  to the Department of Revenue, under oath of the secretary or

23  some other officer of the such person, the total amount of

24  gross receipts derived from business done within this state,

25  or between points within this state, for the preceding month

26  and, at the same time, shall pay into the State Treasury an

27  amount equal to a percentage of the such gross receipts at the

28  rate set forth in paragraph (b). The Such collections shall be

29  certified by the Chief Financial Officer upon the request of

30  the State Board of Education.

31  

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 1         2.  A tax is levied on communications services as

 2  defined in s. 203.11(2) s. 202.11(3). The Such tax shall be

 3  applied to the same services and transactions as are subject

 4  to taxation under chapter 202, and to communications services

 5  that are subject to the exemption provided in s. 202.125(1).

 6  The Such tax shall be applied to the sales price of

 7  communications services when sold at retail and to the actual

 8  cost of operating substitute communications systems, as such

 9  terms are defined in s. 202.11, shall be due and payable at

10  the same time as the taxes imposed under pursuant to chapter

11  202, and shall be administered and collected under pursuant to

12  the provisions of chapter 202.

13         Section 8.  Section 624.105, Florida Statutes, is

14  amended to read:

15         624.105  Waiver of customer liability.--Any regulated

16  company as defined in s. 350.111, any electric utility as

17  defined in s. 366.02(2), any utility as defined in s.

18  367.021(12) or s. 367.022(2) and (7), and any provider of

19  communications services as defined in s. 202.11(2) s.

20  202.11(3) may charge for and include an optional waiver of

21  liability provision in their customer contracts under which

22  the entity agrees to waive all or a portion of the customer's

23  liability for service from the entity for a defined period in

24  the event of the customer's call to active military service,

25  death, disability, involuntary unemployment, qualification for

26  family leave, or similar qualifying event or condition. The

27  Such provisions may not be effective in the customer's

28  contract with the entity unless affirmatively elected by the

29  customer. A No such provision may not shall constitute

30  insurance so long as the provision is a contract between the

31  entity and its customer.

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 1         Section 9.  The retroactive application of this act is

 2  remedial in nature and may not be construed to create a right

 3  to a refund or to require a refund by any governmental entity

 4  of any tax, penalty, or interest remitted to the Department of

 5  Revenue on substitute communications systems before the

 6  effective date of this act.

 7         Section 10.  Section 202.15, Florida Statutes, is

 8  repealed.

 9         Section 11.  This act shall take effect upon becoming a

10  law and shall apply retroactively to October 1, 2001.

11  

12            *****************************************

13                          SENATE SUMMARY

14    Deletes a provision relating to the manner in which the
      tax on gross receipts for communications services is
15    applied to a substitute communications system. Repeals
      the imposition of a local communications services tax on
16    substitute communications systems. Deletes a provision
      imposing a gross receipts tax on the actual costs of
17    operating substitute communications systems. Specifies
      that the retroactive operation of the act is remedial and
18    does not create any right to or require any refunds.

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