HB 0433

1
A bill to be entitled
2An act relating to the tax on gross receipts for utility
3services; amending s. 203.01, F.S.; providing for a tax on
4utility services delivered to a retail consumer in this
5state; providing for a tax on the gross receipts of a
6distribution company providing delivery of electricity to
7a retail consumer, based on an index price; providing for
8an annual calculation of the index price; providing for a
9tax reduction by refund for similar taxes paid to another
10jurisdiction; providing for a tax on the gross receipts of
11a distribution company providing for the sale or
12transportation of natural gas or manufactured gas to a
13retail consumer, based on an index price; providing for an
14annual calculation of the index price; providing for a tax
15reduction by refund for similar taxes paid to another
16jurisdiction; providing for a tax on the cost price of
17electricity, natural gas, or manufactured gas to be paid
18by any person who causes these products to be severed or
19imported into the state for that person's own use;
20revising obsolete provisions; providing that the tax does
21not apply to certain sales, transportation, delivery, or
22uses; amending s. 203.012, F.S.; redefining the term
23"utility service"; defining the term "distribution
24company"; authorizing the executive director of the
25Department of Revenue to adopt emergency rules to
26implement the act; providing an amnesty for unpaid gross
27receipts tax, penalties, and interest on unpaid gross
28receipts tax otherwise due for selling natural gas in this
29state; providing conditions for the amnesty; providing
30limitations for the amnesty; authorizing the executive
31director of the Department of Revenue to adopt emergency
32rules to implement the amnesty; providing an effective
33date.
34
35Be It Enacted by the Legislature of the State of Florida:
36
37     Section 1.  Subsections (1) and (3) of section 203.01,
38Florida Statutes, are amended to read:
39     203.01  Tax on gross receipts for utility and
40communications services.--
41     (1)(a)1.  A tax is imposed on gross receipts from utility
42services that are delivered to a retail consumer in this state.
43Such tax shall be levied as provided in paragraphs (b)-(j) Every
44person that receives payment for any utility service shall
45report by the last day of each month to the Department of
46Revenue, under oath of the secretary or some other officer of
47such person, the total amount of gross receipts derived from
48business done within this state, or between points within this
49state, for the preceding month and, at the same time, shall pay
50into the State Treasury an amount equal to a percentage of such
51gross receipts at the rate set forth in paragraph (b). Such
52collections shall be certified by the Chief Financial Officer
53upon the request of the State Board of Education.
54     2.  A tax is levied on communications services as defined
55in s. 202.11(3). Such tax shall be applied to the same services
56and transactions as are subject to taxation under chapter 202,
57and to communications services that are subject to the exemption
58provided in s. 202.125(1). Such tax shall be applied to the
59sales price of communications services when sold at retail and
60to the actual cost of operating substitute communications
61systems, as such terms are defined in s. 202.11, shall be due
62and payable at the same time as the taxes imposed pursuant to
63chapter 202, and shall be administered and collected pursuant to
64the provisions of chapter 202.
65     (b)  The rate applied to utility services shall be 2.5
66percent. The rate applied to communications services shall be
672.37 percent.
68     (c)  The tax shall be levied against the total amount of
69gross receipts received by a distribution company for its sale
70of utility services if the utility service is delivered to the
71final consumer by a distribution company and the final consumer
72pays the distribution company a charge for utility service which
73includes a charge for both the electricity and the
74transportation of electricity to the consumer. The distribution
75company shall report and remit to the Department of Revenue by
76the last day of each month the taxes levied pursuant to this
77paragraph during the preceding month.
78     (d)1.  Each distribution company that receives payment for
79the delivery of electricity to a retail consumer in this state
80is subject to tax on the exercise of this privilege as provided
81by this paragraph unless the payment is subject to tax under
82paragraph (c). For the exercise of this privilege, the tax
83levied on such distribution company's receipts for the delivery
84of electricity shall be determined by multiplying the number of
85kilowatt hours delivered by the index price and applying the
86rate in paragraph (b) to the result.
87     2.  The index price is the Florida price per kilowatt hour
88for retail consumers in the previous calendar year, as published
89in the United States Energy Information Administration Electric
90Power Monthly and announced by the Department of Revenue on June
911 of each year to be effective for the 12-month period beginning
92July 1 of that year. For each customer class residential,
93commercial, and industrial, the applicable index posted for
94residential, commercial, and industrial will be applied in
95calculating the gross receipts to which the tax applies. If
96publication of the indices is delayed or discontinued, the last
97posted index shall be used until a current index is posted or
98the department adopts a comparable index by rule.
99     3.  Tax due under this paragraph shall be administered,
100paid, and reported in the same manner as the tax due under
101paragraph (c).
102     4.  The amount of tax due under this paragraph shall be
103reduced by the amount of any gross receipts tax or similar tax
104lawfully imposed on and paid by the person from whom the
105consumer purchased the electricity, whether imposed by and paid
106to this state, another state, a territory of the United States,
107or the District of Columbia. This reduction in any gross
108receipts tax shall be available to the final retail consumer as
109a refund made pursuant to s. 215.26 and does not inure to the
110benefit of the person who receives payment for the delivery of
111the electricity. The methods of demonstrating proof of payment
112and the amount of such refund shall be made according to rules
113of the Department of Revenue.
114     (e)1.  Every distribution company that receives payment for
115the sale or transportation of natural or manufactured gas to a
116retail consumer in this state is subject to tax on the exercise
117of this privilege as provided by this paragraph. For the
118exercise of this privilege, the tax levied on such distribution
119company's receipts for the sale or transportation of natural or
120manufactured gas shall be determined by dividing the number of
121cubic feet delivered by 1,000, multiplying the resulting number
122by the index price, and applying the rate in paragraph (b) to
123the result.
124     2.  The index price is the Florida price per 1,000 cubic
125feet for retail consumers in the previous calendar year as
126published in the United States Energy Information Administration
127Natural Gas Monthly and announced by the Department of Revenue
128on June 1 of each year to be effective for the 12-month period
129beginning July 1 of that year. For each customer class
130residential, commercial, and industrial, the applicable index
131posted for residential, commercial, and industrial will be
132applied in calculating the gross receipts to which the tax
133applies. If publication of the indices is delayed or
134discontinued, the last posted index shall be used until a
135current index is posted or the department adopts a comparable
136index by rule.
137     3.  Tax due under this paragraph shall be administered,
138paid, and reported in the same manner as the tax due under
139paragraph (c).
140     4.  The amount of tax due under this paragraph shall be
141reduced by the amount of any gross receipts tax or similar tax
142lawfully imposed on and paid by the person from whom the
143consumer purchased the natural gas or manufactured gas, whether
144imposed by and paid to this state, another state, a territory of
145the United States, or the District of Columbia. This reduction
146in any gross receipts tax shall be available to the final retail
147consumer as a refund pursuant to s. 215.26 and does not inure to
148the benefit of the person providing the transportation service.
149The methods of demonstrating proof of payment and the amount of
150such refund shall be made according to rules of the Department
151of Revenue.
152     (f)  Any person who imports into this state electricity,
153natural gas, or manufactured gas, or severs natural gas, for
154that person's own use or consumption as a substitute for
155purchasing utility, transportation, or delivery services taxable
156under this chapter and who cannot demonstrate payment of the tax
157imposed by this chapter must register with the Department of
158Revenue and pay into the State Treasury each month an amount
159equal to the cost price of such electricity, natural gas, or
160manufactured gas times the rate set forth in paragraph (b),
161reduced by the amount of any gross receipts tax or similar tax
162lawfully imposed on and paid by the person from whom the
163electricity, natural gas, or manufactured gas was purchased or
164any person who provided delivery service or transportation
165service in connection with the electricity, natural gas, or
166manufactured gas. For purposes of this paragraph, the term "cost
167price" has the meaning ascribed in s. 212.02(4). The methods of
168demonstrating proof of payment and the amount of such reductions
169in tax shall be made according to rules of the Department of
170Revenue.
171     (g)(c)  Electricity produced by cogeneration or by small
172power producers which is transmitted and distributed by a public
173utility between two locations of a customer of the utility
174pursuant to s. 366.051 is subject to the tax imposed by this
175section. The tax shall be applied to the cost price of such
176electricity as provided in s. 212.02(4) and shall be paid each
177month by the producer of such electricity.
178     (h)(d)  Electricity produced by cogeneration or by small
179power producers during the 12-month period ending June 30 of
180each year which is in excess of nontaxable electricity produced
181during the 12-month period ending June 30, 1990, is subject to
182the tax imposed by this section. The tax shall be applied to the
183cost price of such electricity as provided in s. 212.02(4) and
184shall be paid each month, beginning with the month in which
185total production exceeds the production of nontaxable
186electricity for the 12-month period ending June 30, 1990. For
187purposes of this paragraph, "nontaxable electricity" means
188electricity produced by cogeneration or by small power producers
189which is not subject to tax under paragraph (g)(c). Taxes paid
190pursuant to paragraph (g)(c) may be credited against taxes due
191under this paragraph. Electricity generated as part of an
192industrial manufacturing process which manufactures products
193from phosphate rock, raw wood fiber, paper, citrus, or any
194agricultural product shall not be subject to the tax imposed by
195this paragraph. "Industrial manufacturing process" means the
196entire process conducted at the location where the process takes
197place.
198     (i)(e)  Any person other than a cogenerator or small power
199producer described in paragraph (h)(d) who produces for his or
200her own use electrical energy which is a substitute for
201electrical energy produced by an electric utility as defined in
202s. 366.02 is subject to the tax imposed by this section. The tax
203shall be applied to the cost price of such electrical energy as
204provided in s. 212.02(4) and shall be paid each month. The
205provisions of this paragraph do not apply to any electrical
206energy produced and used by an electric utility.
207     (j)(f)  Notwithstanding any other provision of this
208chapter, with the exception of a communications services dealer
209reporting taxes administered under chapter 202 telephone or
210telecommunication system described in paragraph (c), the
211department may require:
212     1.  A quarterly return and payment when the tax remitted
213for the preceding four calendar quarters did not exceed $1,000;
214     2.  A semiannual return and payment when the tax remitted
215for the preceding four calendar quarters did not exceed $500; or
216     3.  An annual return and payment when the tax remitted for
217the preceding four calendar quarters did not exceed $100.
218     (3)  The tax imposed by subsection (1) does not apply to
219term "gross receipts" as used herein does not include gross
220receipts of any person derived from:
221     (a)1.  The sale or transportation of natural gas or
222manufactured gas to a public or private utility, including a
223municipal corporation or rural electric cooperative association,
224either for resale or for use as fuel in the generation of
225electricity; or
226     2.(b)  The sale or delivery of electricity to a public or
227private utility, including a municipal corporation or rural
228electric cooperative association, for resale within the state,
229or as part of an electrical interchange agreement or contract
230between such utilities for the purpose of transferring more
231economically generated power;
232
233provided the person deriving gross receipts from such sale
234demonstrates that a sale, transportation, or delivery for resale
235in fact occurred and complies with the following requirements: A
236sale, transportation, or delivery for resale in this state must
237be in strict compliance with the rules and regulations of the
238Department of Revenue; and any sale subject to the tax imposed
239by this section person making a sale for resale in this state
240which is not in strict compliance with the rules and regulations
241of the Department of Revenue shall be subject to liable for and
242pay the tax at the appropriate rate imposed on utilities by
243paragraph (b) on the person making the sale. Any person making a
244sale for resale in this state may, through an informal protest
245provided for in s. 213.21 and the rules of the Department of
246Revenue, provide the department with evidence of the exempt
247status of a sale. The department shall adopt rules which provide
248that valid proof and documentation of the resale in this state
249by a person making the sale for resale in this state will be
250accepted by the department when submitted during the protest
251period but will not be accepted when submitted in any proceeding
252under chapter 120 or any circuit court action instituted under
253chapter 72;.
254     (b)  Wholesale sales of electric transmission service;
255     (c)  The use of natural gas in the production of oil or
256gas, or the use of natural or manufactured gas by a person
257transporting natural or manufactured gas, when used and consumed
258in providing such services; or
259     (d)  The sale or transportation to, or use of, natural gas
260or manufactured gas by a person eligible for an exemption under
261s. 212.08(7)(ff)2. for use as an energy source or a raw
262material.
263     Section 2.  Section 203.012, Florida Statutes, is amended
264to read:
265     203.012  Definitions.--As used in this chapter:
266     (1)  "Distribution company" means any person owning or
267operating local electric or natural or manufactured gas utility
268distribution facilities within this state for the transmission,
269delivery, and sale of electricity or natural or manufactured
270gas. The term does not include natural gas transmission
271companies that are subject to the jurisdiction of the Federal
272Energy Regulatory Commission.
273     (2)  "Person" means any person as defined in s. 212.02.
274     (3)(1)  "Utility service" means electricity for light,
275heat, or power; and natural or manufactured gas for light, heat,
276or power, including transportation, delivery, transmission, and
277distribution of the electricity or natural or manufactured gas.
278This subsection does not broaden the definition of utility
279service to include separately stated charges for tangible
280personal property or services which are not charges for the
281electricity or natural or manufactured gas or the
282transportation, delivery, transmission, or distribution of
283electricity or natural or manufactured gas.
284     Section 3.  Emergency rules.--The executive director of the
285Department of Revenue is authorized, and all conditions are
286deemed met, to adopt emergency rules, under ss. 120.536(1) and
287120.54(4), Florida Statutes, to implement the provisions of s.
288203.01, Florida Statutes, which provide for remittance of tax by
289distribution companies and self-accrual of tax by retail
290consumers and the provisions of s. 203.012, Florida Statutes,
291which define the term "distribution company" and provide that
292utility services include transportation, transmission, and
293distribution of electricity and natural or manufactured gas.
294Such rules shall include forms the Department of Revenue
295determines are necessary or appropriate for registration,
296applying for self-accrual authority, reporting, and remitting
297taxes, or applying for credits. Notwithstanding any other law,
298such emergency rules shall remain effective for 6 months after
299the date of adoption and may be renewed during the pendency of
300procedures to adopt rules addressing the subject of the
301emergency rules.
302     Section 4.  Amnesty for registration and remittance of
303tax.--
304     (1)  The state shall provide an amnesty for unpaid gross
305receipts tax, penalties, and interest on unpaid gross receipts
306tax that may otherwise be due for the sale or transportation of
307natural gas for consumption in this state if all of the
308following requirements are satisfied:
309     (a)  The sales subject to amnesty were made prior to
310October 1, 2005.
311     (b)  The gross receipts at issue were derived from one of
312the following:
313     1.  Sales by persons who are not regulated pursuant to
314chapter 366, Florida Statutes;
315     2.  Sales for which the written sales agreement provides
316for transfer of title to the gas outside the state; or
317     3.  Sales of transportation services associated with the
318sales of gas.
319     (c)  The seller registered with the Department of Revenue
320to pay gross receipts tax on or before October 1, 2005.
321     (d)  The seller applies for amnesty on or before October 1,
3222005, in accordance with the rules of the Department of Revenue.
323     (2)  The amnesty is not available for taxes, penalties, or
324interest that have been assessed if the assessment is final and
325has not been timely challenged, or for any tax, penalty, or
326interest that has been previously paid to the department unless
327the payment is the subject of an assessment that is not final or
328that has been timely challenged.
329     (3)  The amnesty is not available for tax billed to or
330collected by the seller as an itemized charge to customers.
331     (4)  The executive director of the Department of Revenue
332may adopt emergency rules under ss. 120.536(1) and 120.54(4),
333Florida Statutes, to implement the amnesty. Such rules may
334provide forms and procedures for applying for amnesty; for
335reporting the sales for which amnesty is sought; and for
336ensuring the applicant's ongoing commitment to registration,
337collection, and remittance of the state's gross receipts tax.
338Notwithstanding any other law, the emergency rules shall remain
339effective until the later of the date that is 6 months after the
340date of adoption of the rule or the date of final resolution of
341all amnesty applications filed pursuant to this section.
342     Section 5.  This act shall take effect October 1, 2005.


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