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