HB 0505

CS

CHAMBER ACTION

1	The Utilities & Telecommunications Committee recommends the
2	following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to the communications services tax;
8	amending s. 202.16, F.S.; requiring dealers to document
9	exempt sales for resale; providing requirements; providing
10	a definition; providing construction; providing for dealer
11	provision of evidence of the exempt status of certain
12	sales through an informal protest process; requiring the
13	Department of Revenue to accept certain evidence during
14	the protest period; providing limitations; providing for
15	retroactive application; requiring the department to
16	establish a toll-free number for certain registration and
17	resale certificate verification purposes; providing
18	requirements; requiring the department to establish a
19	system for receiving certain information relating to
20	certificate numbers of dealers making purchases for
21	resale; providing requirements; amending s. 202.19, F.S.;
22	clarifying a characterization of the local communications
23	services tax as including certain fees and being in lieu
24	of such fees; authorizing municipalities or counties to
25	use certain revenues distributed to a local government for
26	certain purposes; amending s. 202.20, F.S.; limiting local
27	government authority to make certain rate adjustments in
28	the tax under certain circumstances; deleting obsolete
29	provisions relating to making certain adjustments in the
30	tax for certain periods; amending s. 202.21, F.S.;
31	deleting provisions relating to local government
32	adjustments of the tax by emergency ordinance or
33	resolution to conform; specifying that certain amendments
34	are remedial in nature and clarify certain provisions of
35	law but do not grant rights to refund of certain fees or
36	charges under certain circumstances; providing for
37	nonapplication to certain emergency rates; providing
38	effective dates.
39
40	Be It Enacted by the Legislature of the State of Florida:
41
42	Section 1.  Effective upon this act becoming a law, and
43	operating retroactively to December 31, 2004, subsection (2) of
44	section 202.16, Florida Statutes, is amended to read:
45	202.16  Payment.--The taxes imposed or administered under
46	this chapter and chapter 203 shall be collected from all dealers
47	of taxable communications services on the sale at retail in this
48	state of communications services taxable under this chapter and
49	chapter 203. The full amount of the taxes on a credit sale,
50	installment sale, or sale made on any kind of deferred payment
51	plan is due at the moment of the transaction in the same manner
52	as a cash sale.
53	(2)(a)  A sale of communications services that are used as
54	a component part of or integrated into a communications service
55	or prepaid calling arrangement for resale, including, but not
56	limited to, carrier-access charges, interconnection charges paid
57	by providers of mobile communication services or other
58	communication services, charges paid by cable service providers
59	for the transmission of video or other programming by another
60	dealer of communications services, charges for the sale of
61	unbundled network elements, and any other intercompany charges
62	for the use of facilities for providing communications services
63	for resale, must be made in compliance with the rules of the
64	department. Any person who makes a sale for resale which is not
65	in compliance with these rules is liable for any tax, penalty,
66	and interest due for failing to comply, to be calculated
67	pursuant to s. 202.28(2)(a).
68	(b)1.  Any dealer who makes a sale for resale shall
69	document the exempt nature of the transaction, as established by
70	rules adopted by the department, by retaining a copy of the
71	purchaser's initial or annual resale certificate issued pursuant
72	to s. 202.17(6). In lieu of maintaining a copy of the
73	certificate, a dealer may document, prior to the time of sale,
74	an authorization number, provided telephonically or
75	electronically by the department, or by such other means
76	established by rule of the department. The dealer may rely on an
77	initial or annual resale certificate issued pursuant to s.
78	202.17(6), valid at the time of receipt from the purchaser,
79	without seeking additional annual resale certificates from such
80	purchaser, if the dealer makes recurring sales to the purchaser
81	in the normal course of business on a continual basis. For
82	purposes of this paragraph, the term "recurring sales to a
83	purchaser in the normal course of business" means a sale in
84	which the dealer extends credit to the purchaser and records the
85	debt as an account receivable, or in which the dealer sells to a
86	purchaser who has an established cash account, similar to an
87	open credit account. For purposes of this paragraph, purchases
88	are made from a selling dealer on a continual basis if the
89	selling dealer makes, in the normal course of business, sales to
90	the purchaser no less frequently than once in every 12-month
91	period.
92	2.  A dealer may, through the informal protest process
93	provided for in s. 213.21 and the rules of the department,
94	provide the department with evidence of the exempt status of a
95	sale. Exemption certificates executed by entities that were
96	exempt at the time of sale, resale certificates provided by
97	purchasers who were active dealers at the time of sale, and
98	verification by the department of a purchaser's active dealer
99	status at the time of sale in lieu of a resale certificate shall
100	be accepted by the department when submitted during the protest
101	period but may not be accepted in any proceeding under chapter
102	120 or any circuit court action instituted under chapter 72.
103	Section 2.  Effective January 1, 2006, the Department of
104	Revenue shall establish:
105	(1)  A toll-free number for the verification of valid
106	registration numbers and resale certificates under s.
107	202.16(2)(b), Florida Statutes. The system must be adequate to
108	guarantee a low busy rate, must respond to keypad inquiries, and
109	must provide data that is updated daily.
110	(2)  A system for receiving information from dealers
111	regarding certificate numbers under s. 202.16(2)(b), Florida
112	Statutes, of dealers who are seeking to make purchases for
113	resale. The department shall provide such dealers, free of
114	charge, with verification of those numbers that are canceled or
115	invalid.
116	Section 3.  Paragraph (a) of subsection (3) and subsection
117	(9) of section 202.19, Florida Statutes, are amended to read:
118	202.19  Authorization to impose local communications
119	services tax.--
120	(3)(a)  The tax authorized under this section includes and
121	is in lieu of any fee or other consideration, including, but not
122	limited to, application fees, transfer fees, renewal fees, or
123	claims for related costs, to which the municipality or county is
124	otherwise entitled for granting permission to dealers of
125	communications services, including, but not limited to,
126	providers of cable television services, as authorized in 47
127	U.S.C. s. 542, to use or occupy its roads or rights-of-way for
128	the placement, construction, and maintenance of poles, wires,
129	and other fixtures used in the provision of communications
130	services.
131	(9)  The revenues raised by any tax imposed under
132	subsection (1) or s. 202.20(1), or distributed to a local
133	government pursuant to s. 202.18, may be used by a municipality
134	or county for any public purpose, including, but not limited to,
135	pledging such revenues for the repayment of current or future
136	bonded indebtedness. Revenues raised by a tax imposed under
137	subsection (5) shall be used for the same purposes as the
138	underlying discretionary sales surtax imposed by the county or
139	school board under s. 212.055.
140	Section 4.  Paragraph (a) of subsection (2) of section
141	202.20, Florida Statutes, is amended to read:
142	202.20  Local communications services tax conversion
143	rates.--
144	(2)(a)1.  With respect to any local taxing jurisdiction,
145	if, for the periods ending December 31, 2001; March 31, 2002;
146	June 30, 2002; or September 30, 2002, the revenues received by
147	that local government from the local communications services tax
148	imposed under subsection (1) are less than the revenues received
149	from the replaced revenue sources for the corresponding 2000-
150	2001 period; plus reasonably anticipated growth in such revenues
151	over the preceding 1-year period, based on the average growth of
152	such revenues over the immediately preceding 5-year period; plus
153	an amount representing the revenues from the replaced revenue
154	sources for the 1-month period that the local taxing
155	jurisdiction was required to forego, the governing authority may
156	adjust the rate of the local communications services tax upward
157	to the extent necessary to generate the entire shortfall in
158	revenues within 1 year after the rate adjustment and by an
159	amount necessary to generate the expected amount of revenue on
160	an ongoing basis.
161	2.  If complete data are not available at the time of
162	determining whether the revenues received by a local government
163	from the local communications services tax imposed under
164	subsection (1) are less than the revenues received from the
165	replaced revenue sources for the corresponding 2000-2001 period,
166	as set forth in subparagraph 1., the local government shall use
167	the best data available for the corresponding 2000-2001 period
168	in making such determination.
169	3.  The adjustment permitted under subparagraph 1. may be
170	made by emergency ordinance or resolution and may be made
171	notwithstanding the maximum rate established under s. 202.19(2)
172	and notwithstanding any schedules or timeframes or any other
173	limitations contained in this chapter. The authority of a local
174	government to make such adjustment may be exercised only if the
175	department or a dealer reallocates revenue away from the local
176	government. The emergency ordinance or resolution shall specify
177	an effective date for the adjusted rate, which shall be no less
178	than 60 days after the date of adoption of the ordinance or
179	resolution and shall be effective with respect to taxable
180	services included on bills that are dated on the first day of a
181	month subsequent to the expiration of the 60-day period. At the
182	end of 1 year following the effective date of such adjusted
183	rate, the local governing authority shall, as soon as is
184	consistent with s. 202.21, reduce the rate by that portion of
185	the emergency rate which was necessary to recoup the amount of
186	revenues not received prior to the implementation of the
187	emergency rate.
188	4.  If, for the period October 1, 2001, through September
189	30, 2002, the revenues received by a local government from the
190	local communications services tax conversion rate established
191	under subsection (1), adjusted upward for the difference in
192	rates between paragraphs (1)(a) and (b) or any other rate
193	adjustments or base changes, are above the threshold of 10
194	percent more than the revenues received from the replaced
195	revenue sources for the corresponding 2000-2001 period plus
196	reasonably anticipated growth in such revenues over the
197	preceding 1-year period, based on the average growth of such
198	revenues over the immediately preceding 5-year period, the
199	governing authority must adjust the rate of the local
200	communications services tax to the extent necessary to reduce
201	revenues to the threshold by emergency ordinance or resolution
202	within the timeframes established in subparagraph 3. The
203	foregoing rate adjustment requirement shall not apply to a local
204	government that adopts a local communications services tax rate
205	by resolution or ordinance. If complete data are not available
206	at the time of determining whether the revenues exceed the
207	threshold, the local government shall use the best data
208	available for the corresponding 2000-2001 period in making such
209	determination. This subparagraph shall not be construed as
210	establishing a right of action for any person to enforce this
211	subparagraph or challenge a local government's implementation of
212	this subparagraph.
213	Section 5.  Effective July 1, 2007, subsection (2) of
214	section 202.20, Florida Statutes, as amended by this act, is
215	amended to read:
216	202.20  Local communications services tax conversion
217	rates.--
218	(2)(a)1.  With respect to any local taxing jurisdiction,
219	if, for the periods ending December 31, 2001; March 31, 2002;
220	June 30, 2002; or September 30, 2002, the revenues received by
221	that local government from the local communications services tax
222	imposed under subsection (1) are less than the revenues received
223	from the replaced revenue sources for the corresponding 2000-
224	2001 period; plus reasonably anticipated growth in such revenues
225	over the preceding 1-year period, based on the average growth of
226	such revenues over the immediately preceding 5-year period; plus
227	an amount representing the revenues from the replaced revenue
228	sources for the 1-month period that the local taxing
229	jurisdiction was required to forego, the governing authority may
230	adjust the rate of the local communications services tax upward
231	to the extent necessary to generate the entire shortfall in
232	revenues within 1 year after the rate adjustment and by an
233	amount necessary to generate the expected amount of revenue on
234	an ongoing basis.
235	2.  If complete data are not available at the time of
236	determining whether the revenues received by a local government
237	from the local communications services tax imposed under
238	subsection (1) are less than the revenues received from the
239	replaced revenue sources for the corresponding 2000-2001 period,
240	as set forth in subparagraph 1., the local government shall use
241	the best data available for the corresponding 2000-2001 period
242	in making such determination.
243	3.  The adjustment permitted under subparagraph 1. may be
244	made by emergency ordinance or resolution and may be made
245	notwithstanding the maximum rate established under s. 202.19(2)
246	and notwithstanding any schedules or timeframes or any other
247	limitations contained in this chapter. The authority of a local
248	government to make such adjustment may be exercised only if the
249	department or a dealer reallocates revenue away from the local
250	government. The emergency ordinance or resolution shall specify
251	an effective date for the adjusted rate, which shall be no less
252	than 60 days after the date of adoption of the ordinance or
253	resolution and shall be effective with respect to taxable
254	services included on bills that are dated on the first day of a
255	month subsequent to the expiration of the 60-day period. At the
256	end of 1 year following the effective date of such adjusted
257	rate, the local governing authority shall, as soon as is
258	consistent with s. 202.21, reduce the rate by that portion of
259	the emergency rate which was necessary to recoup the amount of
260	revenues not received prior to the implementation of the
261	emergency rate.
262	4.  If, for the period October 1, 2001, through September
263	30, 2002, the revenues received by a local government from the
264	local communications services tax conversion rate established
265	under subsection (1), adjusted upward for the difference in
266	rates between paragraphs (1)(a) and (b) or any other rate
267	adjustments or base changes, are above the threshold of 10
268	percent more than the revenues received from the replaced
269	revenue sources for the corresponding 2000-2001 period plus
270	reasonably anticipated growth in such revenues over the
271	preceding 1-year period, based on the average growth of such
272	revenues over the immediately preceding 5-year period, the
273	governing authority must adjust the rate of the local
274	communications services tax to the extent necessary to reduce
275	revenues to the threshold by emergency ordinance or resolution
276	within the timeframes established in subparagraph 3. The
277	foregoing rate adjustment requirement shall not apply to a local
278	government that adopts a local communications services tax rate
279	by resolution or ordinance. If complete data are not available
280	at the time of determining whether the revenues exceed the
281	threshold, the local government shall use the best data
282	available for the corresponding 2000-2001 period in making such
283	determination. This subparagraph shall not be construed as
284	establishing a right of action for any person to enforce this
285	subparagraph or challenge a local government's implementation of
286	this subparagraph.
287	(b)  The term Except as otherwise provided in this
288	subsection, "replaced revenue sources," as used in this section,
289	means the following taxes, charges, fees, or other impositions
290	to the extent that the respective local taxing jurisdictions
291	were authorized to impose them prior to July 1, 2000.
292	(a)1.  With respect to municipalities and charter counties
293	and the taxes authorized by s. 202.19(1):
294	1.a.  The public service tax on telecommunications
295	authorized by former s. 166.231(9).
296	2.b.  Franchise fees on cable service providers as
297	authorized by 47 U.S.C. s. 542.
298	3.c.  The public service tax on prepaid calling
299	arrangements.
300	4.d.  Franchise fees on dealers of communications services
301	which use the public roads or rights-of-way, up to the limit set
302	forth in s. 337.401. For purposes of calculating rates under
303	this section, it is the legislative intent that charter counties
304	be treated as having had the same authority as municipalities to
305	impose franchise fees on recurring local telecommunication
306	service revenues prior to July 1, 2000. However, the Legislature
307	recognizes that the authority of charter counties to impose such
308	fees is in dispute, and the treatment provided in this section
309	is not an expression of legislative intent that charter counties
310	actually do or do not possess such authority.
311	5.e.  Actual permit fees relating to placing or maintaining
312	facilities in or on public roads or rights-of-way, collected
313	from providers of long-distance, cable, and mobile
314	communications services for the fiscal year ending September 30,
315	1999; however, if a municipality or charter county elects the
316	option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
317	such fees shall not be included as a replaced revenue source.
318	(b)2.  With respect to all other counties and the taxes
319	authorized in s. 202.19(1), franchise fees on cable service
320	providers as authorized by 47 U.S.C. s. 542.
321	Section 6.  Effective July 1, 2007, section 202.21, Florida
322	Statutes, is amended to read:
323	202.21  Effective dates; procedures for informing dealers
324	of communications services of tax levies and rate changes.--Any
325	adoption, repeal, or change in the rate of a local
326	communications services tax imposed under s. 202.19 is effective
327	with respect to taxable services included on bills that are
328	dated on or after the January 1 subsequent to such adoption,
329	repeal, or change. A municipality or county adopting, repealing,
330	or changing the rate of such tax must notify the department of
331	the adoption, repeal, or change by September 1 immediately
332	preceding such January 1. Notification must be furnished on a
333	form prescribed by the department and must specify the rate of
334	tax; the effective date of the adoption, repeal, or change
335	thereof; and the name, mailing address, and telephone number of
336	a person designated by the municipality or county to respond to
337	inquiries concerning the tax. The department shall provide
338	notice of such adoption, repeal, or change to all affected
339	dealers of communications services at least 90 days before the
340	effective date of the tax. Any local government that adjusts the
341	rate of its local communications services tax by emergency
342	ordinance or resolution pursuant to s. 202.20(2) shall notify
343	the department of the new tax rate immediately upon its
344	adoption. The department shall provide written notice of the
345	adoption of the new rate to all affected dealers within 30 days
346	after receiving such notice. In any notice to providers or
347	publication of local tax rates for purposes of this chapter, the
348	department shall express the rate for a municipality or charter
349	county as the sum of the tax rates levied within such
350	jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall
351	express the rate for any other county as the sum of the tax
352	rates levied pursuant to s. 202.19(2)(b) and (5). The department
353	is not liable for any loss of or decrease in revenue by reason
354	of any error, omission, or untimely action that results in the
355	nonpayment of a tax imposed under s. 202.19.
356	Section 7.  The amendments to s. 202.19(3)(a), Florida
357	Statutes, contained in this act are remedial in nature and
358	intended to clarify the law in effect on October 1, 2001, but do
359	not grant any right to a refund of any fees or charges paid
360	prior to July 1, 2005, unless the payment was made under written
361	protest as to the authority of any local government to impose
362	such fees or costs on a dealer.
363	Section 8.  The amendments to provisions of law made by
364	this act do not apply to emergency rates adopted pursuant to s.
365	202.20, Florida Statutes, prior to the effective dates of this
366	act.
367	Section 9.  Except as otherwise provided herein, this act
368	shall take effect upon becoming a law.

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