HB 0505

1
A bill to be entitled
2An act relating to the communications services tax;
3amending s. 202.16, F.S.; requiring dealers to document
4exempt sales for resale; providing requirements; providing
5a definition; providing construction; providing for dealer
6provision of evidence of the exempt status of certain
7sales through an informal protest process; requiring the
8Department of Revenue to accept certain evidence during
9the protest period; providing limitations; providing for
10retroactive application; amending s. 202.19, F.S.;
11clarifying a characterization of the local communications
12services tax as including certain fees and being in lieu
13of such fees; amending s. 202.20, F.S.; limiting local
14government authority to make certain rate adjustments in
15the tax under certain circumstances; deleting obsolete
16provisions relating to making certain adjustments in the
17tax for certain periods; amending s. 202.21, F.S.;
18deleting provisions relating to local government
19adjustments of the tax by emergency ordinance or
20resolution to conform; specifying that certain amendments
21are remedial in nature and clarify certain provisions of
22law but do not grant rights to refund of certain fees or
23charges under certain circumstances; providing effective
24dates.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Effective upon this act becoming a law, and
29operating retroactively to December 31, 2004, subsection (2) of
30section 202.16, Florida Statutes, is amended to read:
31     202.16  Payment.--The taxes imposed or administered under
32this chapter and chapter 203 shall be collected from all dealers
33of taxable communications services on the sale at retail in this
34state of communications services taxable under this chapter and
35chapter 203. The full amount of the taxes on a credit sale,
36installment sale, or sale made on any kind of deferred payment
37plan is due at the moment of the transaction in the same manner
38as a cash sale.
39     (2)(a)  A sale of communications services that are used as
40a component part of or integrated into a communications service
41or prepaid calling arrangement for resale, including, but not
42limited to, carrier-access charges, interconnection charges paid
43by providers of mobile communication services or other
44communication services, charges paid by cable service providers
45for the transmission of video or other programming by another
46dealer of communications services, charges for the sale of
47unbundled network elements, and any other intercompany charges
48for the use of facilities for providing communications services
49for resale, must be made in compliance with the rules of the
50department. Any person who makes a sale for resale which is not
51in compliance with these rules is liable for any tax, penalty,
52and interest due for failing to comply, to be calculated
53pursuant to s. 202.28(2)(a).
54     (b)1.  Any dealer who makes a sale for resale shall
55document the exempt nature of the transaction, as established by
56rules adopted by the department, by retaining a copy of the
57purchaser's initial or annual resale certificate issued pursuant
58to s. 202.17(6). In lieu of maintaining a copy of the
59certificate, a dealer may document, prior to the time of sale,
60an authorization number, provided telephonically or
61electronically by the department, or by such other means
62established by rule of the department. The dealer may rely on an
63initial or annual resale certificate issued pursuant to s.
64202.17(6), valid at the time of receipt from the purchaser,
65without seeking additional annual resale certificates from such
66purchaser, if the dealer makes recurring sales to the purchaser
67in the normal course of business on a continual basis. For
68purposes of this paragraph, the term "recurring sales to a
69purchaser in the normal course of business" means a sale in
70which the dealer extends credit to the purchaser and records the
71debt as an account receivable, or in which the dealer sells to a
72purchaser who has an established cash account, similar to an
73open credit account. For purposes of this paragraph, purchases
74are made from a selling dealer on a continual basis if the
75selling dealer makes, in the normal course of business, sales to
76the purchaser no less frequently than once in every 12-month
77period.
78     2.  A dealer may, through the informal protest process
79provided for in s. 213.21 and the rules of the department,
80provide the department with evidence of the exempt status of a
81sale. Exemption certificates executed by entities that were
82exempt at the time of sale, resale certificates provided by
83purchasers who were active dealers at the time of sale, and
84verification by the department of a purchaser's active dealer
85status at the time of sale in lieu of a resale certificate shall
86be accepted by the department when submitted during the protest
87period but may not be accepted in any proceeding under chapter
88120 or any circuit court action instituted under chapter 72.
89     Section 2.  Paragraph (a) of subsection (3) of section
90202.19, Florida Statutes, is amended to read:
91     202.19  Authorization to impose local communications
92services tax.--
93     (3)(a)  The tax authorized under this section includes and
94is in lieu of any fee or other consideration, including, but not
95limited to, application fees, transfer fees, renewal fees, or
96claims for related costs, to which the municipality or county is
97otherwise entitled for granting permission to dealers of
98communications services, including, but not limited to,
99providers of cable television services, as authorized in 47
100U.S.C. s. 542, to use or occupy its roads or rights-of-way for
101the placement, construction, and maintenance of poles, wires,
102and other fixtures used in the provision of communications
103services.
104     Section 3.  Paragraph (a) of subsection (2) of section
105202.20, Florida Statutes, is amended to read:
106     202.20  Local communications services tax conversion
107rates.--
108     (2)(a)1.  With respect to any local taxing jurisdiction,
109if, for the periods ending December 31, 2001; March 31, 2002;
110June 30, 2002; or September 30, 2002, the revenues received by
111that local government from the local communications services tax
112imposed under subsection (1) are less than the revenues received
113from the replaced revenue sources for the corresponding 2000-
1142001 period; plus reasonably anticipated growth in such revenues
115over the preceding 1-year period, based on the average growth of
116such revenues over the immediately preceding 5-year period; plus
117an amount representing the revenues from the replaced revenue
118sources for the 1-month period that the local taxing
119jurisdiction was required to forego, the governing authority may
120adjust the rate of the local communications services tax upward
121to the extent necessary to generate the entire shortfall in
122revenues within 1 year after the rate adjustment and by an
123amount necessary to generate the expected amount of revenue on
124an ongoing basis.
125     2.  If complete data are not available at the time of
126determining whether the revenues received by a local government
127from the local communications services tax imposed under
128subsection (1) are less than the revenues received from the
129replaced revenue sources for the corresponding 2000-2001 period,
130as set forth in subparagraph 1., the local government shall use
131the best data available for the corresponding 2000-2001 period
132in making such determination.
133     3.  The adjustment permitted under subparagraph 1. may be
134made by emergency ordinance or resolution and may be made
135notwithstanding the maximum rate established under s. 202.19(2)
136and notwithstanding any schedules or timeframes or any other
137limitations contained in this chapter. The authority of a local
138government to make such adjustment may be exercised only if the
139department or a dealer reallocates revenue away from the local
140government. The emergency ordinance or resolution shall specify
141an effective date for the adjusted rate, which shall be no less
142than 60 days after the date of adoption of the ordinance or
143resolution and shall be effective with respect to taxable
144services included on bills that are dated on the first day of a
145month subsequent to the expiration of the 60-day period. At the
146end of 1 year following the effective date of such adjusted
147rate, the local governing authority shall, as soon as is
148consistent with s. 202.21, reduce the rate by that portion of
149the emergency rate which was necessary to recoup the amount of
150revenues not received prior to the implementation of the
151emergency rate.
152     4.  If, for the period October 1, 2001, through September
15330, 2002, the revenues received by a local government from the
154local communications services tax conversion rate established
155under subsection (1), adjusted upward for the difference in
156rates between paragraphs (1)(a) and (b) or any other rate
157adjustments or base changes, are above the threshold of 10
158percent more than the revenues received from the replaced
159revenue sources for the corresponding 2000-2001 period plus
160reasonably anticipated growth in such revenues over the
161preceding 1-year period, based on the average growth of such
162revenues over the immediately preceding 5-year period, the
163governing authority must adjust the rate of the local
164communications services tax to the extent necessary to reduce
165revenues to the threshold by emergency ordinance or resolution
166within the timeframes established in subparagraph 3. The
167foregoing rate adjustment requirement shall not apply to a local
168government that adopts a local communications services tax rate
169by resolution or ordinance. If complete data are not available
170at the time of determining whether the revenues exceed the
171threshold, the local government shall use the best data
172available for the corresponding 2000-2001 period in making such
173determination. This subparagraph shall not be construed as
174establishing a right of action for any person to enforce this
175subparagraph or challenge a local government's implementation of
176this subparagraph.
177     Section 4.  Effective July 1, 2007, subsection (2) of
178section 202.20, Florida Statutes, as amended by this act, is
179amended to read:
180     202.20  Local communications services tax conversion
181rates.--
182     (2)(a)1.  With respect to any local taxing jurisdiction,
183if, for the periods ending December 31, 2001; March 31, 2002;
184June 30, 2002; or September 30, 2002, the revenues received by
185that local government from the local communications services tax
186imposed under subsection (1) are less than the revenues received
187from the replaced revenue sources for the corresponding 2000-
1882001 period; plus reasonably anticipated growth in such revenues
189over the preceding 1-year period, based on the average growth of
190such revenues over the immediately preceding 5-year period; plus
191an amount representing the revenues from the replaced revenue
192sources for the 1-month period that the local taxing
193jurisdiction was required to forego, the governing authority may
194adjust the rate of the local communications services tax upward
195to the extent necessary to generate the entire shortfall in
196revenues within 1 year after the rate adjustment and by an
197amount necessary to generate the expected amount of revenue on
198an ongoing basis.
199     2.  If complete data are not available at the time of
200determining whether the revenues received by a local government
201from the local communications services tax imposed under
202subsection (1) are less than the revenues received from the
203replaced revenue sources for the corresponding 2000-2001 period,
204as set forth in subparagraph 1., the local government shall use
205the best data available for the corresponding 2000-2001 period
206in making such determination.
207     3.  The adjustment permitted under subparagraph 1. may be
208made by emergency ordinance or resolution and may be made
209notwithstanding the maximum rate established under s. 202.19(2)
210and notwithstanding any schedules or timeframes or any other
211limitations contained in this chapter. The authority of a local
212government to make such adjustment may be exercised only if the
213department or a dealer reallocates revenue away from the local
214government. The emergency ordinance or resolution shall specify
215an effective date for the adjusted rate, which shall be no less
216than 60 days after the date of adoption of the ordinance or
217resolution and shall be effective with respect to taxable
218services included on bills that are dated on the first day of a
219month subsequent to the expiration of the 60-day period. At the
220end of 1 year following the effective date of such adjusted
221rate, the local governing authority shall, as soon as is
222consistent with s. 202.21, reduce the rate by that portion of
223the emergency rate which was necessary to recoup the amount of
224revenues not received prior to the implementation of the
225emergency rate.
226     4.  If, for the period October 1, 2001, through September
22730, 2002, the revenues received by a local government from the
228local communications services tax conversion rate established
229under subsection (1), adjusted upward for the difference in
230rates between paragraphs (1)(a) and (b) or any other rate
231adjustments or base changes, are above the threshold of 10
232percent more than the revenues received from the replaced
233revenue sources for the corresponding 2000-2001 period plus
234reasonably anticipated growth in such revenues over the
235preceding 1-year period, based on the average growth of such
236revenues over the immediately preceding 5-year period, the
237governing authority must adjust the rate of the local
238communications services tax to the extent necessary to reduce
239revenues to the threshold by emergency ordinance or resolution
240within the timeframes established in subparagraph 3. The
241foregoing rate adjustment requirement shall not apply to a local
242government that adopts a local communications services tax rate
243by resolution or ordinance. If complete data are not available
244at the time of determining whether the revenues exceed the
245threshold, the local government shall use the best data
246available for the corresponding 2000-2001 period in making such
247determination. This subparagraph shall not be construed as
248establishing a right of action for any person to enforce this
249subparagraph or challenge a local government's implementation of
250this subparagraph.
251     (b)  The term Except as otherwise provided in this
252subsection, "replaced revenue sources," as used in this section,
253means the following taxes, charges, fees, or other impositions
254to the extent that the respective local taxing jurisdictions
255were authorized to impose them prior to July 1, 2000.
256     (a)1.  With respect to municipalities and charter counties
257and the taxes authorized by s. 202.19(1):
258     1.a.  The public service tax on telecommunications
259authorized by former s. 166.231(9).
260     2.b.  Franchise fees on cable service providers as
261authorized by 47 U.S.C. s. 542.
262     3.c.  The public service tax on prepaid calling
263arrangements.
264     4.d.  Franchise fees on dealers of communications services
265which use the public roads or rights-of-way, up to the limit set
266forth in s. 337.401. For purposes of calculating rates under
267this section, it is the legislative intent that charter counties
268be treated as having had the same authority as municipalities to
269impose franchise fees on recurring local telecommunication
270service revenues prior to July 1, 2000. However, the Legislature
271recognizes that the authority of charter counties to impose such
272fees is in dispute, and the treatment provided in this section
273is not an expression of legislative intent that charter counties
274actually do or do not possess such authority.
275     5.e.  Actual permit fees relating to placing or maintaining
276facilities in or on public roads or rights-of-way, collected
277from providers of long-distance, cable, and mobile
278communications services for the fiscal year ending September 30,
2791999; however, if a municipality or charter county elects the
280option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
281such fees shall not be included as a replaced revenue source.
282     (b)2.  With respect to all other counties and the taxes
283authorized in s. 202.19(1), franchise fees on cable service
284providers as authorized by 47 U.S.C. s. 542.
285     Section 5.  Effective July 1, 2007, section 202.21, Florida
286Statutes, is amended to read:
287     202.21  Effective dates; procedures for informing dealers
288of communications services of tax levies and rate changes.--Any
289adoption, repeal, or change in the rate of a local
290communications services tax imposed under s. 202.19 is effective
291with respect to taxable services included on bills that are
292dated on or after the January 1 subsequent to such adoption,
293repeal, or change. A municipality or county adopting, repealing,
294or changing the rate of such tax must notify the department of
295the adoption, repeal, or change by September 1 immediately
296preceding such January 1. Notification must be furnished on a
297form prescribed by the department and must specify the rate of
298tax; the effective date of the adoption, repeal, or change
299thereof; and the name, mailing address, and telephone number of
300a person designated by the municipality or county to respond to
301inquiries concerning the tax. The department shall provide
302notice of such adoption, repeal, or change to all affected
303dealers of communications services at least 90 days before the
304effective date of the tax. Any local government that adjusts the
305rate of its local communications services tax by emergency
306ordinance or resolution pursuant to s. 202.20(2) shall notify
307the department of the new tax rate immediately upon its
308adoption. The department shall provide written notice of the
309adoption of the new rate to all affected dealers within 30 days
310after receiving such notice. In any notice to providers or
311publication of local tax rates for purposes of this chapter, the
312department shall express the rate for a municipality or charter
313county as the sum of the tax rates levied within such
314jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall
315express the rate for any other county as the sum of the tax
316rates levied pursuant to s. 202.19(2)(b) and (5). The department
317is not liable for any loss of or decrease in revenue by reason
318of any error, omission, or untimely action that results in the
319nonpayment of a tax imposed under s. 202.19.
320     Section 6.  The amendments to s. 202.19(3)(a), Florida
321Statutes, contained in this act are remedial in nature and
322intended to clarify the law in effect on October 1, 2001, but do
323not grant any right to a refund of any fees or charges paid
324prior to July 1, 2004, unless the payment was made under written
325protest as to the authority of any local government to impose
326such fees or costs on a dealer.
327     Section 7.  Except as otherwise provided herein, this act
328shall take effect upon becoming a law.


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