| 1 | A bill to be entitled |
| 2 | An act relating to the tax on gross receipts for utility |
| 3 | services; amending s. 203.01, F.S.; providing for a tax on |
| 4 | utility services delivered to a retail consumer in this |
| 5 | state; providing for a tax on the gross receipts of a |
| 6 | distribution company providing delivery of electricity to |
| 7 | a retail consumer, based on an index price; providing for |
| 8 | an annual calculation of the index price; providing for a |
| 9 | tax reduction by refund for similar taxes paid to another |
| 10 | jurisdiction; providing for a tax on the gross receipts of |
| 11 | a distribution company providing for the sale or |
| 12 | transportation of natural gas or manufactured gas to a |
| 13 | retail consumer, based on an index price; providing for an |
| 14 | annual calculation of the index price; providing for a tax |
| 15 | reduction by refund for similar taxes paid to another |
| 16 | jurisdiction; providing for a tax on the cost price of |
| 17 | electricity, natural gas, or manufactured gas to be paid |
| 18 | by any person who causes these products to be severed or |
| 19 | imported into the state for that person's own use; |
| 20 | revising obsolete provisions; providing that the tax does |
| 21 | not apply to certain sales, transportation, delivery, or |
| 22 | uses; amending s. 203.012, F.S.; redefining the term |
| 23 | "utility service"; defining the term "distribution |
| 24 | company"; authorizing the executive director of the |
| 25 | Department of Revenue to adopt emergency rules to |
| 26 | implement the act; providing an amnesty for unpaid gross |
| 27 | receipts tax, penalties, and interest on unpaid gross |
| 28 | receipts tax otherwise due for selling natural gas in this |
| 29 | state; providing conditions for the amnesty; providing |
| 30 | limitations for the amnesty; authorizing the executive |
| 31 | director of the Department of Revenue to adopt emergency |
| 32 | rules to implement the amnesty; providing an effective |
| 33 | date. |
| 34 |
|
| 35 | Be It Enacted by the Legislature of the State of Florida: |
| 36 |
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| 37 | Section 1. Subsections (1) and (3) of section 203.01, |
| 38 | Florida Statutes, are amended to read: |
| 39 | 203.01 Tax on gross receipts for utility and |
| 40 | communications services.-- |
| 41 | (1)(a)1. A tax is imposed on gross receipts from utility |
| 42 | services that are delivered to a retail consumer in this state. |
| 43 | Such tax shall be levied as provided in paragraphs (b)-(j) Every |
| 44 | person that receives payment for any utility service shall |
| 45 | report by the last day of each month to the Department of |
| 46 | Revenue, under oath of the secretary or some other officer of |
| 47 | such person, the total amount of gross receipts derived from |
| 48 | business done within this state, or between points within this |
| 49 | state, for the preceding month and, at the same time, shall pay |
| 50 | into the State Treasury an amount equal to a percentage of such |
| 51 | gross receipts at the rate set forth in paragraph (b). Such |
| 52 | collections shall be certified by the Chief Financial Officer |
| 53 | upon the request of the State Board of Education. |
| 54 | 2. A tax is levied on communications services as defined |
| 55 | in s. 202.11(3). Such tax shall be applied to the same services |
| 56 | and transactions as are subject to taxation under chapter 202, |
| 57 | and to communications services that are subject to the exemption |
| 58 | provided in s. 202.125(1). Such tax shall be applied to the |
| 59 | sales price of communications services when sold at retail and |
| 60 | to the actual cost of operating substitute communications |
| 61 | systems, as such terms are defined in s. 202.11, shall be due |
| 62 | and payable at the same time as the taxes imposed pursuant to |
| 63 | chapter 202, and shall be administered and collected pursuant to |
| 64 | the provisions of chapter 202. |
| 65 | (b) The rate applied to utility services shall be 2.5 |
| 66 | percent. The rate applied to communications services shall be |
| 67 | 2.37 percent. |
| 68 | (c) The tax shall be levied against the total amount of |
| 69 | gross receipts received by a distribution company for its sale |
| 70 | of utility services if the utility service is delivered to the |
| 71 | final consumer by a distribution company and the final consumer |
| 72 | pays the distribution company a charge for utility service which |
| 73 | includes a charge for both the electricity and the |
| 74 | transportation of electricity to the consumer. The distribution |
| 75 | company shall report and remit to the Department of Revenue by |
| 76 | the last day of each month the taxes levied pursuant to this |
| 77 | paragraph during the preceding month. |
| 78 | (d)1. Each distribution company that receives payment for |
| 79 | the delivery of electricity to a retail consumer in this state |
| 80 | is subject to tax on the exercise of this privilege as provided |
| 81 | by this paragraph unless the payment is subject to tax under |
| 82 | paragraph (c). For the exercise of this privilege, the tax |
| 83 | levied on such distribution company's receipts for the delivery |
| 84 | of electricity shall be determined by multiplying the number of |
| 85 | kilowatt hours delivered by the index price and applying the |
| 86 | rate in paragraph (b) to the result. |
| 87 | 2. The index price is the Florida price per kilowatt hour |
| 88 | for retail consumers in the previous calendar year, as published |
| 89 | in the United States Energy Information Administration Electric |
| 90 | Power Monthly and announced by the Department of Revenue on June |
| 91 | 1 of each year to be effective for the 12-month period beginning |
| 92 | July 1 of that year. For each customer class residential, |
| 93 | commercial, and industrial, the applicable index posted for |
| 94 | residential, commercial, and industrial will be applied in |
| 95 | calculating the gross receipts to which the tax applies. If |
| 96 | publication of the indices is delayed or discontinued, the last |
| 97 | posted index shall be used until a current index is posted or |
| 98 | the department adopts a comparable index by rule. |
| 99 | 3. Tax due under this paragraph shall be administered, |
| 100 | paid, and reported in the same manner as the tax due under |
| 101 | paragraph (c). |
| 102 | 4. The amount of tax due under this paragraph shall be |
| 103 | reduced by the amount of any gross receipts tax or similar tax |
| 104 | lawfully imposed on and paid by the person from whom the |
| 105 | consumer purchased the electricity, whether imposed by and paid |
| 106 | to this state, another state, a territory of the United States, |
| 107 | or the District of Columbia. This reduction in any gross |
| 108 | receipts tax shall be available to the final retail consumer as |
| 109 | a refund made pursuant to s. 215.26 and does not inure to the |
| 110 | benefit of the person who receives payment for the delivery of |
| 111 | the electricity. The methods of demonstrating proof of payment |
| 112 | and the amount of such refund shall be made according to rules |
| 113 | of the Department of Revenue. |
| 114 | (e)1. Every distribution company that receives payment for |
| 115 | the sale or transportation of natural or manufactured gas to a |
| 116 | retail consumer in this state is subject to tax on the exercise |
| 117 | of this privilege as provided by this paragraph. For the |
| 118 | exercise of this privilege, the tax levied on such distribution |
| 119 | company's receipts for the sale or transportation of natural or |
| 120 | manufactured gas shall be determined by dividing the number of |
| 121 | cubic feet delivered by 1,000, multiplying the resulting number |
| 122 | by the index price, and applying the rate in paragraph (b) to |
| 123 | the result. |
| 124 | 2. The index price is the Florida price per 1,000 cubic |
| 125 | feet for retail consumers in the previous calendar year as |
| 126 | published in the United States Energy Information Administration |
| 127 | Natural Gas Monthly and announced by the Department of Revenue |
| 128 | on June 1 of each year to be effective for the 12-month period |
| 129 | beginning July 1 of that year. For each customer class |
| 130 | residential, commercial, and industrial, the applicable index |
| 131 | posted for residential, commercial, and industrial will be |
| 132 | applied in calculating the gross receipts to which the tax |
| 133 | applies. If publication of the indices is delayed or |
| 134 | discontinued, the last posted index shall be used until a |
| 135 | current index is posted or the department adopts a comparable |
| 136 | index by rule. |
| 137 | 3. Tax due under this paragraph shall be administered, |
| 138 | paid, and reported in the same manner as the tax due under |
| 139 | paragraph (c). |
| 140 | 4. The amount of tax due under this paragraph shall be |
| 141 | reduced by the amount of any gross receipts tax or similar tax |
| 142 | lawfully imposed on and paid by the person from whom the |
| 143 | consumer purchased the natural gas or manufactured gas, whether |
| 144 | imposed by and paid to this state, another state, a territory of |
| 145 | the United States, or the District of Columbia. This reduction |
| 146 | in any gross receipts tax shall be available to the final retail |
| 147 | consumer as a refund pursuant to s. 215.26 and does not inure to |
| 148 | the benefit of the person providing the transportation service. |
| 149 | The methods of demonstrating proof of payment and the amount of |
| 150 | such refund shall be made according to rules of the Department |
| 151 | of Revenue. |
| 152 | (f) Any person who imports into this state electricity, |
| 153 | natural gas, or manufactured gas, or severs natural gas, for |
| 154 | that person's own use or consumption as a substitute for |
| 155 | purchasing utility, transportation, or delivery services taxable |
| 156 | under this chapter and who cannot demonstrate payment of the tax |
| 157 | imposed by this chapter must register with the Department of |
| 158 | Revenue and pay into the State Treasury each month an amount |
| 159 | equal to the cost price of such electricity, natural gas, or |
| 160 | manufactured gas times the rate set forth in paragraph (b), |
| 161 | reduced by the amount of any gross receipts tax or similar tax |
| 162 | lawfully imposed on and paid by the person from whom the |
| 163 | electricity, natural gas, or manufactured gas was purchased or |
| 164 | any person who provided delivery service or transportation |
| 165 | service in connection with the electricity, natural gas, or |
| 166 | manufactured gas. For purposes of this paragraph, the term "cost |
| 167 | price" has the meaning ascribed in s. 212.02(4). The methods of |
| 168 | demonstrating proof of payment and the amount of such reductions |
| 169 | in tax shall be made according to rules of the Department of |
| 170 | Revenue. |
| 171 | (g)(c) Electricity produced by cogeneration or by small |
| 172 | power producers which is transmitted and distributed by a public |
| 173 | utility between two locations of a customer of the utility |
| 174 | pursuant to s. 366.051 is subject to the tax imposed by this |
| 175 | section. The tax shall be applied to the cost price of such |
| 176 | electricity as provided in s. 212.02(4) and shall be paid each |
| 177 | month by the producer of such electricity. |
| 178 | (h)(d) Electricity produced by cogeneration or by small |
| 179 | power producers during the 12-month period ending June 30 of |
| 180 | each year which is in excess of nontaxable electricity produced |
| 181 | during the 12-month period ending June 30, 1990, is subject to |
| 182 | the tax imposed by this section. The tax shall be applied to the |
| 183 | cost price of such electricity as provided in s. 212.02(4) and |
| 184 | shall be paid each month, beginning with the month in which |
| 185 | total production exceeds the production of nontaxable |
| 186 | electricity for the 12-month period ending June 30, 1990. For |
| 187 | purposes of this paragraph, "nontaxable electricity" means |
| 188 | electricity produced by cogeneration or by small power producers |
| 189 | which is not subject to tax under paragraph (g)(c). Taxes paid |
| 190 | pursuant to paragraph (g)(c) may be credited against taxes due |
| 191 | under this paragraph. Electricity generated as part of an |
| 192 | industrial manufacturing process which manufactures products |
| 193 | from phosphate rock, raw wood fiber, paper, citrus, or any |
| 194 | agricultural product shall not be subject to the tax imposed by |
| 195 | this paragraph. "Industrial manufacturing process" means the |
| 196 | entire process conducted at the location where the process takes |
| 197 | place. |
| 198 | (i)(e) Any person other than a cogenerator or small power |
| 199 | producer described in paragraph (h)(d) who produces for his or |
| 200 | her own use electrical energy which is a substitute for |
| 201 | electrical energy produced by an electric utility as defined in |
| 202 | s. 366.02 is subject to the tax imposed by this section. The tax |
| 203 | shall be applied to the cost price of such electrical energy as |
| 204 | provided in s. 212.02(4) and shall be paid each month. The |
| 205 | provisions of this paragraph do not apply to any electrical |
| 206 | energy produced and used by an electric utility. |
| 207 | (j)(f) Notwithstanding any other provision of this |
| 208 | chapter, with the exception of a communications services dealer |
| 209 | reporting taxes administered under chapter 202 telephone or |
| 210 | telecommunication system described in paragraph (c), the |
| 211 | department may require: |
| 212 | 1. A quarterly return and payment when the tax remitted |
| 213 | for the preceding four calendar quarters did not exceed $1,000; |
| 214 | 2. A semiannual return and payment when the tax remitted |
| 215 | for the preceding four calendar quarters did not exceed $500; or |
| 216 | 3. An annual return and payment when the tax remitted for |
| 217 | the preceding four calendar quarters did not exceed $100. |
| 218 | (3) The tax imposed by subsection (1) does not apply to |
| 219 | term "gross receipts" as used herein does not include gross |
| 220 | receipts of any person derived from: |
| 221 | (a)1. The sale or transportation of natural gas or |
| 222 | manufactured gas to a public or private utility, including a |
| 223 | municipal corporation or rural electric cooperative association, |
| 224 | either for resale or for use as fuel in the generation of |
| 225 | electricity; or |
| 226 | 2.(b) The sale or delivery of electricity to a public or |
| 227 | private utility, including a municipal corporation or rural |
| 228 | electric cooperative association, for resale within the state, |
| 229 | or as part of an electrical interchange agreement or contract |
| 230 | between such utilities for the purpose of transferring more |
| 231 | economically generated power; |
| 232 |
|
| 233 | provided the person deriving gross receipts from such sale |
| 234 | demonstrates that a sale, transportation, or delivery for resale |
| 235 | in fact occurred and complies with the following requirements: A |
| 236 | sale, transportation, or delivery for resale in this state must |
| 237 | be in strict compliance with the rules and regulations of the |
| 238 | Department of Revenue; and any sale subject to the tax imposed |
| 239 | by this section person making a sale for resale in this state |
| 240 | which is not in strict compliance with the rules and regulations |
| 241 | of the Department of Revenue shall be subject to liable for and |
| 242 | pay the tax at the appropriate rate imposed on utilities by |
| 243 | paragraph (b) on the person making the sale. Any person making a |
| 244 | sale for resale in this state may, through an informal protest |
| 245 | provided for in s. 213.21 and the rules of the Department of |
| 246 | Revenue, provide the department with evidence of the exempt |
| 247 | status of a sale. The department shall adopt rules which provide |
| 248 | that valid proof and documentation of the resale in this state |
| 249 | by a person making the sale for resale in this state will be |
| 250 | accepted by the department when submitted during the protest |
| 251 | period but will not be accepted when submitted in any proceeding |
| 252 | under chapter 120 or any circuit court action instituted under |
| 253 | chapter 72;. |
| 254 | (b) Wholesale sales of electric transmission service; |
| 255 | (c) The use of natural gas in the production of oil or |
| 256 | gas, or the use of natural or manufactured gas by a person |
| 257 | transporting natural or manufactured gas, when used and consumed |
| 258 | in providing such services; or |
| 259 | (d) The sale or transportation to, or use of, natural gas |
| 260 | or manufactured gas by a person eligible for an exemption under |
| 261 | s. 212.08(7)(ff)2. for use as an energy source or a raw |
| 262 | material. |
| 263 | Section 2. Section 203.012, Florida Statutes, is amended |
| 264 | to read: |
| 265 | 203.012 Definitions.--As used in this chapter: |
| 266 | (1) "Distribution company" means any person owning or |
| 267 | operating local electric or natural or manufactured gas utility |
| 268 | distribution facilities within this state for the transmission, |
| 269 | delivery, and sale of electricity or natural or manufactured |
| 270 | gas. The term does not include natural gas transmission |
| 271 | companies that are subject to the jurisdiction of the Federal |
| 272 | Energy Regulatory Commission. |
| 273 | (2) "Person" means any person as defined in s. 212.02. |
| 274 | (3)(1) "Utility service" means electricity for light, |
| 275 | heat, or power; and natural or manufactured gas for light, heat, |
| 276 | or power, including transportation, delivery, transmission, and |
| 277 | distribution of the electricity or natural or manufactured gas. |
| 278 | This subsection does not broaden the definition of utility |
| 279 | service to include separately stated charges for tangible |
| 280 | personal property or services which are not charges for the |
| 281 | electricity or natural or manufactured gas or the |
| 282 | transportation, delivery, transmission, or distribution of |
| 283 | electricity or natural or manufactured gas. |
| 284 | Section 3. Emergency rules.--The executive director of the |
| 285 | Department of Revenue is authorized, and all conditions are |
| 286 | deemed met, to adopt emergency rules, under ss. 120.536(1) and |
| 287 | 120.54(4), Florida Statutes, to implement the provisions of s. |
| 288 | 203.01, Florida Statutes, which provide for remittance of tax by |
| 289 | distribution companies and self-accrual of tax by retail |
| 290 | consumers and the provisions of s. 203.012, Florida Statutes, |
| 291 | which define the term "distribution company" and provide that |
| 292 | utility services include transportation, transmission, and |
| 293 | distribution of electricity and natural or manufactured gas. |
| 294 | Such rules shall include forms the Department of Revenue |
| 295 | determines are necessary or appropriate for registration, |
| 296 | applying for self-accrual authority, reporting, and remitting |
| 297 | taxes, or applying for credits. Notwithstanding any other law, |
| 298 | such emergency rules shall remain effective for 6 months after |
| 299 | the date of adoption and may be renewed during the pendency of |
| 300 | procedures to adopt rules addressing the subject of the |
| 301 | emergency rules. |
| 302 | Section 4. Amnesty for registration and remittance of |
| 303 | tax.-- |
| 304 | (1) The state shall provide an amnesty for unpaid gross |
| 305 | receipts tax, penalties, and interest on unpaid gross receipts |
| 306 | tax that may otherwise be due for the sale or transportation of |
| 307 | natural gas for consumption in this state if all of the |
| 308 | following requirements are satisfied: |
| 309 | (a) The sales subject to amnesty were made prior to |
| 310 | October 1, 2005. |
| 311 | (b) The gross receipts at issue were derived from one of |
| 312 | the following: |
| 313 | 1. Sales by persons who are not regulated pursuant to |
| 314 | chapter 366, Florida Statutes; |
| 315 | 2. Sales for which the written sales agreement provides |
| 316 | for transfer of title to the gas outside the state; or |
| 317 | 3. Sales of transportation services associated with the |
| 318 | sales of gas. |
| 319 | (c) The seller registered with the Department of Revenue |
| 320 | to pay gross receipts tax on or before October 1, 2005. |
| 321 | (d) The seller applies for amnesty on or before October 1, |
| 322 | 2005, in accordance with the rules of the Department of Revenue. |
| 323 | (2) The amnesty is not available for taxes, penalties, or |
| 324 | interest that have been assessed if the assessment is final and |
| 325 | has not been timely challenged, or for any tax, penalty, or |
| 326 | interest that has been previously paid to the department unless |
| 327 | the payment is the subject of an assessment that is not final or |
| 328 | that has been timely challenged. |
| 329 | (3) The amnesty is not available for tax billed to or |
| 330 | collected by the seller as an itemized charge to customers. |
| 331 | (4) The executive director of the Department of Revenue |
| 332 | may adopt emergency rules under ss. 120.536(1) and 120.54(4), |
| 333 | Florida Statutes, to implement the amnesty. Such rules may |
| 334 | provide forms and procedures for applying for amnesty; for |
| 335 | reporting the sales for which amnesty is sought; and for |
| 336 | ensuring the applicant's ongoing commitment to registration, |
| 337 | collection, and remittance of the state's gross receipts tax. |
| 338 | Notwithstanding any other law, the emergency rules shall remain |
| 339 | effective until the later of the date that is 6 months after the |
| 340 | date of adoption of the rule or the date of final resolution of |
| 341 | all amnesty applications filed pursuant to this section. |
| 342 | Section 5. This act shall take effect October 1, 2005. |