Senate Bill sb2454

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    Florida Senate - 2005                                  SB 2454

    By Senator Webster





    9-1432-05

  1                      A bill to be entitled

  2         An act relating to the tax on transient rental

  3         accommodations; amending s. 212.03, F.S.;

  4         clarifying the meaning of the term "engaging in

  5         the business of renting, leasing, letting, or

  6         granting a license to use transient rental

  7         accommodations" for taxation purposes to

  8         include certain remarketing activities;

  9         redefining the term "taxable rent or

10         consideration" to include charges or fees paid

11         by a customer to a person collecting the rent

12         or consideration as a condition of occupancy of

13         a transient rental; requiring persons engaged

14         in certain remarketing activities regarding

15         transient rental accommodations to collect

16         taxes on total rentals; providing alternative

17         methods for remitting the taxes to the

18         Department of Revenue; providing for

19         incorporating transient rentals into vacation

20         packages; providing for administration by the

21         department of taxes remitted by remarketers;

22         providing for a local audit under certain

23         circumstances; providing that specified

24         subsections are intended to clarify existing

25         law; providing intent; providing an amnesty for

26         unpaid taxes, penalties, and interest on

27         transient rentals under certain circumstances;

28         providing for the adoption of emergency rules

29         to implement the amnesty; amending s. 212.04,

30         F.S.; requiring a travel agent to be registered

31         as a seller of travel; providing for

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    Florida Senate - 2005                                  SB 2454
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 1         recordkeeping; amending s. 212.18, F.S.;

 2         requiring only a single registration for

 3         transient rental remarketers; providing an

 4         effective date.

 5  

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

 7  

 8         Section 1.  Subsections (8), (9), (10), (11), (12), and

 9  (13) are added to section 212.03, Florida Statutes, to read:

10         212.03  Transient rentals tax; rate, procedure,

11  enforcement, exemptions.--

12         (8)  For purposes of this section and ss. 125.0104,

13  125.0108, and 212.0305, the term "engaging in the business of

14  renting, leasing, letting, or granting a license to use

15  transient rental accommodations" includes any activity in

16  which a person offers information about the availability of

17  accommodations to a customer, arranges for the customer's

18  occupancy of the accommodations, or establishes the total

19  rental price the customer pays for the accommodations, and

20  collects the rental payments from the customer. A person

21  engaged in the activities described in this subsection is

22  referred to in this section as a "remarketer".

23         (9)  The terms "total rent" as used in this section,

24  "total consideration" as used in ss. 125.0104 and 125.0108,

25  and "consideration" as used in s. 212.0305 have the same

26  meaning. The terms include the total consideration that a

27  customer must pay in order to use or occupy a transient

28  accommodation, including service charges or fees that are a

29  condition of occupancy, except for mandatory fees imposed for

30  the availability of communications services. Charges or fees

31  paid by a customer to the person collecting the rent or

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    Florida Senate - 2005                                  SB 2454
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 1  consideration as a condition of occupancy are included in the

 2  taxable rent or consideration even if the charges or fees are

 3  separately itemized on the customer's bill or are for items or

 4  services provided by a third party. Charges for items or

 5  services provided to occupants of transient accommodations

 6  which are not intrinsic to occupancy of the accommodation,

 7  which are provided only upon the election of the occupant, and

 8  which are separately itemized are not included in the taxable

 9  rent or consideration.

10         (10)  The term "discount rate" as used in this section

11  means the rate the registered owner or operator of the

12  accommodation charges the remarketer for the room.

13         (11)  The term "markup" as used in this section means

14  the difference between the total rent and the discounted rate.

15         (12)(a)  Remarketers shall collect taxes on the total

16  rent collected from their customers. A remarketer may elect to

17  remit the taxes as provided in paragraph (b) or in paragraph

18  (c). A remarketer must remit all taxes collected under this

19  section in the same manner.

20         (b)1.  A remarketer may elect to remit under a

21  dual-remittance system. A remarketer who elects this method

22  must register with the department as a dealer for purposes of

23  this chapter. The remarketer must remit to the owner or

24  operator of any transient rental accommodations occupied by a

25  customer of the remarketer the taxes due under chapter 125 and

26  under this chapter on the discount rate at the time of payment

27  of that rate to the owner or operator. The owner or operator

28  shall report and remit the total taxes received from the

29  remarketer with the next return due after the month in which

30  the owner or operator receives payment from the remarketer.

31  The remarketer must report and remit to the department the

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    Florida Senate - 2005                                  SB 2454
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 1  taxes due under chapter 125 and under this chapter on the

 2  markup. The taxes must be reported on and remitted with the

 3  first return due from the remarketer after the month in which

 4  the customer pays the rental to the remarketer.

 5         2.  The remarketer must provide a copy of its dealer

 6  registration certificate to the owner or operator of any

 7  transient rental accommodations with which the remarketer has

 8  entered a contractual remarketing arrangement to evidence its

 9  election to remit taxes directly to the department on the

10  markup. If a remarketer that has a contractual remarketing

11  arrangement with the owner or operator does not provide the

12  certificate, the owner or operator shall collect and remit

13  taxes under the single-remittance system described in

14  paragraph (c), unless the remarketer provides the

15  documentation described in paragraph (d) concerning use of

16  transient accommodations as components of vacation packages.

17         (c)  A remarketer may elect to remit under a

18  single-remittance system. A remarketer who elects this method

19  must disclose to the owner or operator of the transient rental

20  accommodations the total rental paid by the remarketer's

21  customer and must remit the taxes on the total rental to the

22  owner or operator with the payment of the discount rate. If

23  the remarketer does not disclose the total rental received

24  from the customer, the remarketer shall remit to the owner or

25  operator taxes on 135 percent of the discount rate or, if a

26  written contract between the remarketer and the owner or

27  operator establishes a lesser maximum amount, the remarketer

28  may charge as total rental to the customer tax on the maximum

29  amount. The owner or operator shall report and remit the total

30  taxes received from the remarketer with the next return due

31  after the month in which the owner or operator receives the

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    Florida Senate - 2005                                  SB 2454
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 1  payment. The owner or operator is not liable for any tax,

 2  penalty, or interest due if the remarketer fails to accurately

 3  report and remit the taxes imposed by this section or by ss.

 4  125.0104, 125.0108, and 212.0305. The owner or operator must

 5  maintain in its records the information provided by the

 6  remarketer for the period of time for which the return in

 7  which that information is reflected is subject to audit by the

 8  department.

 9         (d)  If a remarketer is a travel agent within the

10  meaning of s. 212.04(1)(d), the remarketer may treat transient

11  accommodations as component parts of vacation packages when

12  the requirements of that provision are met. A remarketer that

13  operates under a single-remittance system may furnish a copy

14  of the remarketer's certificate of registration as a seller of

15  travel or a letter of exemption from registration as a seller

16  of travel to the owner or operator of accommodations that are

17  incorporated as component parts of vacation packages to

18  establish that the accommodations are not subject to the

19  disclosure and tax collection requirements of paragraph (c).

20         (e)  The owner or operator of transient accommodations

21  has no obligation to inquire whether a person that rents

22  transient accommodations is acting as a remarketer in regard

23  to those accommodations. The obligations imposed on an owner

24  or operator by this subsection arise only if there is a

25  contractual remarketing arrangement between the owner or

26  operator and the person that rents transient accommodation

27  from the owner or operator.

28         (13)(a)1.  The department shall administer, collect,

29  and enforce all taxes remitted by remarketers on the markup

30  under a dual-remittance system, including interest and

31  penalties attributable thereto, regardless of whether the

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    Florida Senate - 2005                                  SB 2454
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 1  taxes are imposed under this chapter or chapter 125.

 2  Notwithstanding any election made by a county to

 3  self-administer local taxes under chapter 125 or s. 212.0305,

 4  each remarketer who is obligated to collect and remit one or

 5  more local taxes on transient accommodations imposed under

 6  chapter 125 or s. 212.0305 under a dual remittance system

 7  shall separately report and identify each tax to the

 8  department, by jurisdiction, on a form prescribed by the

 9  department, and shall pay the taxes to the department. A

10  remarketer may include in a single payment to the department

11  the total amount of all state and local taxes on the markup on

12  transient rentals imposed under this chapter and chapter 125.

13         2.  The department shall keep records showing the

14  amount of taxes collected, which records must also include

15  records disclosing the amount of taxes collected for each

16  county in which the tax authorized by this section is

17  applicable. These records must be open for inspection during

18  the regular office hours of the department, subject to s.

19  213.053. Proceeds received by the department from the taxes,

20  less costs of administration of this section, shall be paid

21  and returned monthly to the county that imposed the tax, for

22  use by the county according to the section under which the tax

23  was imposed. The proceeds shall be paid to the county in the

24  month after which they are received by the department in the

25  same manner as other taxes imposed under chapter 125 which are

26  administered by the department. For purposes of this section,

27  the proceeds of any tax levied by a county under chapter 125

28  or s. 212.0305 are all funds collected and received by the

29  department under a specific levy authorized by this chapter or

30  section, including any interest and penalties attributable to

31  the tax levy.

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    Florida Senate - 2005                                  SB 2454
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 1         (b)  Audits performed by the department must include a

 2  determination of whether the rates collected for applicable

 3  local tourist development taxes, tourist impact taxes, and

 4  convention development taxes are correct. A person or entity

 5  designated by a county to receive information from the

 6  department under s. 213.0535 may provide evidence to the

 7  department demonstrating a specific person's failure to fully

 8  or correctly report taxable remarketing activities within the

 9  jurisdiction, including evidence discovered in a county's

10  audit of a transient rental owner or operator under chapter

11  125 or s. 212.0305. The department may request additional

12  information from the designee to assist in any review. The

13  department shall inform the designee of what action, if any,

14  the department intends to take regarding the person.

15         (c)  Notwithstanding paragraph (a), if a remarketer

16  engages in remarketing activities solely in regard to

17  transient accommodations located within a single county in the

18  state and that county self-administers tourist development or

19  tourist impact taxes imposed under chapter 125 or convention

20  development taxes imposed under s. 212.0305, that county may

21  perform an audit of the remarketer with respect to the

22  remarketing activity, unless the department is conducting an

23  audit of the remarketer's compliance with this chapter for the

24  same period.

25         1.  Before this authority may be exercised, and for

26  purposes of determining whether a remarketer operates solely

27  within one county, a county may presume the localized

28  operation if the remarketer reports remarketing activity in a

29  single county. Upon notice by the county to the department of

30  an intent to audit a dealer, the department shall notify the

31  county within 60 days if the department has issued a notice of

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    Florida Senate - 2005                                  SB 2454
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 1  intent to audit the remarketer, or it shall notify the

 2  remarketer of the county's request to audit.

 3         2.  The remarketer may, within 30 days, rebut the

 4  presumption of single-county operation by providing evidence

 5  to the department that it engages in remarketing activity in

 6  more than one county in the state.

 7         3.  If, during the course of an audit conducted under

 8  this paragraph, a county determines that a remarketer was

 9  engaged in remarketing activity in regard to transient

10  accommodations located in any other county in the state during

11  the period under audit, the county shall terminate the audit

12  and notify the department of its findings.

13         4.  In conducting audits, a county is bound by

14  department rules and technical assistance advisements issued

15  during the course of an audit conducted under this paragraph.

16  A county conducting audits under this paragraph, or taxpayers

17  being audited under this paragraph, may request the department

18  to issue a technical assistance advisement under s. 213.22

19  regarding a pending audit issue. If the department is

20  requested to issue a technical assistance advisement, it shall

21  notify the affected county or taxpayer of the technical

22  assistance request.

23         5.  The review, protest, and collection of amounts due

24  under chapter 125 or s. 212.0305 as the result of an audit

25  performed by a county are the responsibility of the county.

26         6.  The fee or any portion of a fee for audits

27  conducted on behalf of a county under this paragraph may not

28  be based upon the amount assessed or collected as a result of

29  the audit, and a determination based upon an audit conducted

30  in violation of this prohibition is valid.

31  

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 1         7.  All audits performed under this paragraph must be

 2  conducted according to the standards adopted by the American

 3  Institute of Certified Public Accountants, the Institute of

 4  Internal Auditors, or the Comptroller General of the United

 5  States insofar as those standards are not inconsistent with

 6  rules of the department.

 7         8.  The department may adopt rules for the notification

 8  and determination processes established in this paragraph and

 9  for the information to be provided by a county conducting an

10  audit.

11         Section 2.  Subsections (8) and (9) of section 212.03,

12  Florida Statutes, as created by this act, are intended to

13  clarify existing law.

14         Section 3.  Amnesty for registration and remittance of

15  tax.--

16         (1)  The state shall provide an amnesty for unpaid

17  taxes, penalties, and interest imposed under chapter 125 or

18  chapter 212, Florida Statutes, on transient rentals if all of

19  the following requirements are satisfied:

20         (a)  The rentals subject to amnesty were made before

21  July 1, 2005;

22         (b)  The rental payments were collected by remarketers

23  who are not owners, operators, or managers of the transient

24  rental accommodations or their agents;

25         (c)  The remarketer who collected the rental payments

26  registers with the Department of Revenue to pay taxes on

27  transient rentals on or before July 1, 2005; and

28         (d)  The remarketer who collected the rental payments

29  applies for amnesty by October 1, 2005, under rules of the

30  Department of Revenue.

31  

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 1         (2)  The amnesty is not available for taxes, penalties,

 2  or interest that have been assessed if the assessment is final

 3  and has not been timely challenged, or for any taxes,

 4  penalties, or interest that have been paid to the department

 5  unless the payment is the subject of an assessment that is not

 6  final or that has been timely challenged.

 7         (3)  The amnesty is not available for a tax billed to

 8  or collected from the consumer who pays for occupancy of the

 9  transient rental accommodation. However, the amnesty applies

10  to the amounts to the extent that the remarketer who collected

11  the rental payments can document that the taxes were remitted

12  to the owner or operator of the transient rental

13  accommodation.

14         (4)  The executive director of the Department of

15  Revenue may adopt emergency rules under sections 120.536(1)

16  and 120.54(4), Florida Statutes, to implement the amnesty. The

17  rules may provide forms and procedures for applying for

18  amnesty, for reporting the rentals for which amnesty is

19  sought, and for ensuring the applicant's ongoing commitment to

20  registration, collection, and remittance of the taxes imposed

21  by state law on transient rentals. Notwithstanding any other

22  law to the contrary, the emergency rules shall remain

23  effective until 6 months after the date of adoption of the

24  rule or the date of final resolution of all amnesty

25  applications filed under this section, whichever occurs later.

26         Section 4.  Paragraph (d) of subsection (1) of section

27  212.04, Florida Statutes, is amended to read:

28         212.04  Admissions tax; rate, procedure, enforcement.--

29         (1)

30         (d)  No additional tax is due on components

31  incorporated as part of a package sold by a travel agent if

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    Florida Senate - 2005                                  SB 2454
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 1  the package includes two or more components such as

 2  admissions, transient rentals, transportation, or meals; if

 3  all of the components were purchased by the travel agent from

 4  other parties and any sales tax due on such purchases was

 5  paid; and if there is no separate itemization of the

 6  admission, transient rental, transportation, meal, or other

 7  components in the sales price of the package.  This paragraph

 8  does not apply if the actual price charged for a component by

 9  the dealer to a travel agent is less than the price charged to

10  unrelated parties under normal industry practices and the

11  dealer and the travel agent are members of the same controlled

12  group of corporations for federal income tax purposes. For

13  purposes of this paragraph, the term "travel agent" means a

14  seller of travel as defined in s. 559.927 which has registered

15  with the Department of Agriculture and Consumer Services as

16  required by s. 559.928 or obtained a letter of exemption from

17  registration from the Department of Agriculture and Consumer

18  Services under s. 559.935.

19         Section 5.  Paragraph (a) of subsection (3) of section

20  212.18, Florida Statutes, is amended to read:

21         212.18  Administration of law; registration of dealers;

22  rules.--

23         (3)(a)  Every person desiring to engage in or conduct

24  business in this state as a dealer, as defined in this

25  chapter, or to lease, rent, or let or grant licenses in living

26  quarters or sleeping or housekeeping accommodations in hotels,

27  apartment houses, roominghouses, or tourist or trailer camps

28  that are subject to tax under s. 212.03, or to lease, rent, or

29  let or grant licenses in real property, as defined in this

30  chapter, and every person who sells or receives anything of

31  value by way of admissions, must file with the department an

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 1  application for a certificate of registration for each place

 2  of business, showing the names of the persons who have

 3  interests in the such business and their residences, the

 4  address of the business, and such other data as the department

 5  may reasonably require. However, owners and operators of

 6  vending machines or newspaper rack machines are required to

 7  obtain only one certificate of registration for each county in

 8  which the such machines are located. A person who engages in

 9  arranging transient accommodations as a remarketer as

10  described in s. 212.03 and who elects to remit taxes to the

11  department under a dual-remittance system as described in s.

12  212.03 is required to obtain only one certificate of

13  registration in connection with his or her remarketing

14  activities in this state. The department, by rule, may

15  authorize a dealer that uses independent sellers to sell its

16  merchandise to remit tax on the retail sales price charged to

17  the ultimate consumer in lieu of having the independent seller

18  register as a dealer and remit the tax. The department may

19  appoint the county tax collector as the department's agent to

20  accept applications for registrations. The application must be

21  made to the department before the person, firm, copartnership,

22  or corporation may engage in the such business, and it must be

23  accompanied by a registration fee of $5. However, a

24  registration fee is not required to accompany an application

25  to engage in or conduct business to make mail order sales. The

26  department may waive the registration fee for applications

27  submitted through the department's Internet registration

28  process.

29         Section 6.  This act shall take effect July 1, 2005.

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Relates to the tax on transient rental accommodations.
      Clarifies the meaning of the term "engaging in the
 4    business of renting, leasing, letting, or granting a
      license to use transient rental accommodations" for
 5    taxation purposes to include certain remarketing
      activities. Redefines the term "taxable rent or
 6    consideration" to include charges or fees paid by a
      customer to a person collecting the rent or consideration
 7    as a condition of occupancy of a transient rental.
      Requires persons engaged in certain remarketing
 8    activities regarding transient rental accommodations to
      collect taxes on total rentals. Provides alternative
 9    methods for remitting the taxes to the Department of
      Revenue. Provides for incorporating transient rentals
10    into vacation packages. Provides for administration by
      the department of taxes remitted by remarketers. Provides
11    for a local audit under certain circumstances. Provides
      that specified subsections are intended to clarify
12    existing law. Provides intent. Provides an amnesty for
      unpaid taxes, penalties, and interest on transient
13    rentals under certain circumstances. Provides for the
      adoption of emergency rules to implement the amnesty.
14    Requires a travel agent to be registered as a seller of
      travel. Provides for recordkeeping. Requires only a
15    single registration for transient rental remarketers.

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