Senate Bill sb0056

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    Florida Senate - 2005                                    SB 56

    By Senator Campbell





    32-35-05

  1                      A bill to be entitled

  2         An act relating to the Streamlined Sales and

  3         Use Tax Agreement; amending s. 212.02, F.S.;

  4         redefining the terms "lease," "let," "rental,"

  5         "sales price," and "tangible personal property"

  6         and defining the terms "agent," "seller,"

  7         "certified service provider," "direct mail,"

  8         "prewritten computer software," and "delivery

  9         charges" for purposes of sales and use taxes;

10         providing applicability; amending s. 212.05,

11         F.S.; deleting provisions relating to the

12         rental or lease of motor vehicles; providing

13         for determining the location of the sale or

14         recharge of prepaid calling arrangements;

15         amending s. 212.054, F.S.; providing the time

16         for applying changes in local option tax rates;

17         providing guidelines for determining the situs

18         of certain transactions; providing for notice

19         of a change in the rate of a local option sales

20         tax; providing for applicability of s.

21         202.22(2), F.S., relating to determination of

22         local tax situs, for the purpose of providing

23         and maintaining a database of sales and use tax

24         rates for local jurisdictions; amending s.

25         212.06, F.S.; defining terms; providing rules

26         for determining the location of transactions

27         involving the retail sale of tangible personal

28         property, digital goods, or services and for

29         the lease or rental of tangible personal

30         property; requiring certain business purchasers

31         to obtain multiple points of use exemption

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 1         forms; providing for use of such forms;

 2         requiring certain purchasers of direct mail to

 3         obtain a direct mail form; providing for the

 4         use of such form; amending s. 212.08, F.S.,

 5         relating to exemptions from the sales and use

 6         tax; defining and redefining terms used with

 7         respect to the exemption for general groceries;

 8         defining and redefining terms used with respect

 9         to the exemption for medical products and

10         supplies; revising that exemption; amending s.

11         212.095, F.S.; revising provisions relating to

12         refunds; creating s. 212.094, F.S.; requiring a

13         purchaser seeking a refund or credit under

14         chapter 212, F.S., to submit a written request

15         for the refund or credit; providing a time

16         period within which the dealer must respond to

17         the written request; amending s. 212.17, F.S.;

18         prescribing additional guidelines and

19         procedures with respect to dealer credits for

20         taxes paid on worthless accounts; creating s.

21         213.052, F.S.; providing for notice of state

22         sales or use tax rate changes; creating s.

23         213.0521, F.S.; providing the effective date

24         for state sales and use tax rate changes;

25         amending s. 213.21, F.S.; providing for amnesty

26         to certain sellers for uncollected or unpaid

27         sales and use taxes; amending s. 213.256, F.S.,

28         relating to simplified sales and use tax

29         administration; defining terms; providing that

30         authority to administer the Streamlined Sales

31         and Use Tax Agreement rests with a governing

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 1         board comprised of representatives of member

 2         states; providing for continuing effect of the

 3         agreement; providing for annual recertification

 4         by member states; creating s. 213.2567, F.S.;

 5         providing for the registration of sellers, the

 6         certification of a person as a certified

 7         service provider, and the certification of a

 8         software program as a certified automated

 9         system by the governing board under the

10         Streamlined Sales and Use Tax Agreement;

11         amending s. 212.055, F.S.; conforming a

12         cross-reference; repealing s. 212.0596(6),

13         F.S., relating to the exemption from collecting

14         and remitting any local option surtax for

15         certain dealers who make mail order sales;

16         declaring legislative intent; providing for the

17         adoption of emergency rules; providing an

18         effective date.

19  

20  Be It Enacted by the Legislature of the State of Florida:

21  

22         Section 1.  Paragraph (g) of subsection (10) and

23  subsections (16) and (19) of section 212.02, Florida Statutes,

24  are amended, and subsections (35), (36), (37), (38), (39), and

25  (40) are added to that section, to read:

26         212.02  Definitions.--The following terms and phrases

27  when used in this chapter have the meanings ascribed to them

28  in this section, except where the context clearly indicates a

29  different meaning:

30         (10)  "Lease," "let," or "rental" means leasing or

31  renting of living quarters or sleeping or housekeeping

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 1  accommodations in hotels, apartment houses, roominghouses,

 2  tourist or trailer camps and real property, the same being

 3  defined as follows:

 4         (g)1.  "Lease," "let," or "rental" also means any

 5  transfer of possession or control of tangible personal

 6  property for a fixed or indeterminate term for consideration.

 7  A clause for a future option to purchase or to extend the

 8  agreement does not preclude an agreement from being a lease or

 9  rental. This definition shall be used for purposes of the

10  sales and use tax regardless of whether a transaction is

11  characterized as a lease or rental under generally accepted

12  accounting principles, the Internal Revenue Code, the Uniform

13  Commercial Code, or other provisions of federal, state, or

14  local law. This definition includes agreements covering motor

15  vehicles and trailers if the amount of consideration may be

16  increased or decreased by reference to the amount realized

17  upon sale or disposition of the property as provided in 26

18  U.S.C. s. 7701(h)(1). This definition does not include:

19         a.  A transfer of possession or control of property

20  under a security agreement or deferred payment plan that

21  requires the transfer of title upon completion of the required

22  payments;

23         b.  A transfer of possession or control of property

24  under an agreement that requires the transfer of title upon

25  completion of required payments and payment of an option price

26  that does not exceed the greater of $100 or 1 percent of the

27  total required payments; or

28         c.  A provision of tangible personal property along

29  with an operator for a fixed or indeterminate period of time.

30  A condition of this exclusion is that the operator is

31  necessary for the equipment to perform as designed. For the

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 1  purpose of this sub-subparagraph, an operator must do more

 2  than maintain, inspect, or set up the tangible personal

 3  property. the leasing or rental of tangible personal property

 4  and the possession or use thereof by the lessee or rentee for

 5  a consideration, without transfer of the title of such

 6  property, except as expressly provided to the contrary herein.

 7         2.  The term "lease," "let," or "rental" does not mean

 8  hourly, daily, or mileage charges, to the extent that such

 9  charges are subject to the jurisdiction of the United States

10  Interstate Commerce Commission, when such charges are paid by

11  reason of the presence of railroad cars owned by another on

12  the tracks of the taxpayer, or charges made pursuant to car

13  service agreements. The term "lease," "let," "rental," or

14  "license" does not include payments made to an owner of

15  high-voltage bulk transmission facilities in connection with

16  the possession or control of such facilities by a regional

17  transmission organization, independent system operator, or

18  similar entity under the jurisdiction of the Federal Energy

19  Regulatory Commission. However, where two taxpayers, in

20  connection with the interchange of facilities, rent or lease

21  property, each to the other, for use in providing or

22  furnishing any of the services mentioned in s. 166.231, the

23  term "lease or rental" means only the net amount of rental

24  involved.

25         (16)(a)  "Sales price" applies to the measure subject

26  to sales tax and means the total amount of consideration,

27  including cash, credit, property, and services, for which

28  personal property or services are sold, leased, or rented,

29  valued in money, whether received in money or otherwise,

30  without any deduction for:

31         1.  The seller's cost of the property sold;

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 1         2.  The cost of materials used, labor or service cost,

 2  interest, losses, all costs of transportation to the seller,

 3  all taxes imposed on the seller, and any other expense of the

 4  seller;

 5         3.  Charges by the seller for any services necessary to

 6  complete the sale, other than delivery and installation

 7  charges;

 8         4.  Delivery charges; or

 9         5.  Installation charges.

10         (b)  The term "sales price" does not include:

11         1.  Trade-ins allowed and taken at the time of sale if

12  the amount is separately stated on the invoice, bill of sale,

13  or similar document given to the purchaser;

14         2.  Discounts, including cash, term, or coupons, which

15  are not reimbursed by a third party, are allowed by a seller,

16  and taken by a purchaser at the time of sale;

17         3.  Interest, financing, and carrying charges from

18  credit extended on the sale of personal property or services,

19  if the amount is separately stated on the invoice, bill of

20  sale, or similar document given to the purchaser; or

21         4.  Any taxes legally imposed directly on the consumer

22  which are separately stated on the invoice, bill of sale, or

23  similar document given to the purchaser.

24         (16)  "Sales price" means the total amount paid for

25  tangible personal property, including any services that are a

26  part of the sale, valued in money, whether paid in money or

27  otherwise, and includes any amount for which credit is given

28  to the purchaser by the seller, without any deduction

29  therefrom on account of the cost of the property sold, the

30  cost of materials used, labor or service cost, interest

31  charged, losses, or any other expense whatsoever. "Sales

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 1  price" also includes the consideration for a transaction which

 2  requires both labor and material to alter, remodel, maintain,

 3  adjust, or repair tangible personal property. Trade-ins or

 4  discounts allowed and taken at the time of sale shall not be

 5  included within the purview of this subsection "Sales price"

 6  also includes the full face value of any coupon used by a

 7  purchaser to reduce the price paid to a retailer for an item

 8  of tangible personal property; where the retailer will be

 9  reimbursed for such coupon, in whole or in part, by the

10  manufacturer of the item of tangible personal property; or

11  whenever it is not practicable for the retailer to determine,

12  at the time of sale, the extent to which reimbursement for the

13  coupon will be made. The term "sales price" does not include

14  federal excise taxes imposed upon the retailer on the sale of

15  tangible personal property. The term "sales price" does

16  include federal manufacturers' excise taxes, even if the

17  federal tax is listed as a separate item on the invoice.

18         (19)  "Tangible personal property" means and includes

19  personal property which may be seen, weighed, measured, or

20  touched or is in any manner perceptible to the senses,

21  including electric power or energy, water, gas, steam,

22  prewritten computer software, boats, motor vehicles and mobile

23  homes as defined in s. 320.01(1) and (2), aircraft as defined

24  in s. 330.27, and all other types of vehicles.  The term

25  "tangible personal property" does not include stocks, bonds,

26  notes, insurance, or other obligations or securities;

27  intangibles as defined by the intangible tax law of the state;

28  or pari-mutuel tickets sold or issued under the racing laws of

29  the state.

30         (35)  "Agent" means a person appointed by a principal

31  or authorized to act for the principal in a transaction

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 1  involving the sale of an item of tangible personal property.

 2  The term also means a person appointed by a seller to

 3  represent the seller before the states that are signatories to

 4  the Streamlined Sales and Use Tax Agreement.

 5         (36)  "Seller" means any person making sales, leases,

 6  or rentals of personal property or services.

 7         (37)  "Certified service provider" means an agent

 8  certified under the Streamlined Sales and Use Tax Agreement to

 9  perform all of the seller's sales tax functions, other than

10  the seller's obligation to remit tax on its own purchases.

11         (38)  "Direct mail" means printed material delivered or

12  distributed by United States mail or other delivery service to

13  a mass audience or to addressees on a mailing list provided by

14  the purchaser or at the direction of the purchaser when the

15  cost of the items is not billed directly to the recipients.

16  The term includes tangible personal property supplied directly

17  or indirectly by the purchaser to the direct mail seller for

18  inclusion in the package containing the printed material. The

19  term does not include multiple items of printed material

20  delivered to a single address.

21         (39)  "Prewritten computer software" means computer

22  software, including prewritten upgrades, which is not designed

23  and developed by the author or other creator to the

24  specifications of a specific purchaser. The combining of two

25  or more prewritten computer software programs or prewritten

26  portions thereof does not cause the combination to be other

27  than "prewritten computer software." The term includes

28  software designed and developed by the author or other creator

29  to the specifications of a specific purchaser when it is sold

30  to a person other than that purchaser. When a person modifies

31  or enhances computer software of which the person is not the

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 1  author or creator, the person is the author or creator only of

 2  that person's modifications or enhancements. Prewritten

 3  computer software, or a prewritten portion thereof, which is

 4  modified or enhanced to any degree, when such modification or

 5  enhancement is designed and developed to the specifications of

 6  a specific purchaser, remains "prewritten computer software";

 7  however, if there is a reasonable, separately stated charge or

 8  an invoice or other statement of the price given to the

 9  purchaser for such modification or enhancement, the

10  modification or enhancement does not constitute "prewritten

11  computer software."

12         (40)  "Delivery charges" means charges by the seller of

13  personal property or services for preparation and delivery to

14  a location designated by the purchaser of personal property or

15  services, including, but not limited to, transportation,

16  shipping, postage, handling, crating, and packing. The term

17  does not include the charges for delivery of "direct mail" as

18  defined by this section if the charges are separately stated

19  on an invoice or similar billing document given to the

20  purchaser.

21         Section 2.  The amendment of the terms "lease," "let,"

22  and "rental" in section 212.02, Florida Statutes, made by this

23  act applies prospectively only, from January 1, 2006, and does

24  not apply retroactively to leases or rentals existing before

25  that date.

26         Section 3.  Paragraphs (c) and (e) of subsection (1) of

27  section 212.05, Florida Statutes, are amended to read:

28         212.05  Sales, storage, use tax.--It is hereby declared

29  to be the legislative intent that every person is exercising a

30  taxable privilege who engages in the business of selling

31  tangible personal property at retail in this state, including

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 1  the business of making mail order sales, or who rents or

 2  furnishes any of the things or services taxable under this

 3  chapter, or who stores for use or consumption in this state

 4  any item or article of tangible personal property as defined

 5  herein and who leases or rents such property within the state.

 6         (1)  For the exercise of such privilege, a tax is

 7  levied on each taxable transaction or incident, which tax is

 8  due and payable as follows:

 9         (c)  At the rate of 6 percent of the gross proceeds

10  derived from the lease or rental of tangible personal

11  property, as defined herein.; however, the following special

12  provisions apply to the lease or rental of motor vehicles:

13         1.  When a motor vehicle is leased or rented for a

14  period of less than 12 months:

15         a.  If the motor vehicle is rented in Florida, the

16  entire amount of such rental is taxable, even if the vehicle

17  is dropped off in another state.

18         b.  If the motor vehicle is rented in another state and

19  dropped off in Florida, the rental is exempt from Florida tax.

20         2.  Except as provided in subparagraph 3., for the

21  lease or rental of a motor vehicle for a period of not less

22  than 12 months, sales tax is due on the lease or rental

23  payments if the vehicle is registered in this state; provided,

24  however, that no tax shall be due if the taxpayer documents

25  use of the motor vehicle outside this state and tax is being

26  paid on the lease or rental payments in another state.

27         3.  The tax imposed by this chapter does not apply to

28  the lease or rental of a commercial motor vehicle as defined

29  in s. 316.003(66)(a) to one lessee or rentee for a period of

30  not less than 12 months when tax was paid on the purchase

31  price of such vehicle by the lessor. To the extent tax was

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 1  paid with respect to the purchase of such vehicle in another

 2  state, territory of the United States, or the District of

 3  Columbia, the Florida tax payable shall be reduced in

 4  accordance with the provisions of s. 212.06(7). This

 5  subparagraph shall only be available when the lease or rental

 6  of such property is an established business or part of an

 7  established business or the same is incidental or germane to

 8  such business.

 9         (e)1.  At the rate of 6 percent on charges for:

10         a.  Prepaid calling arrangements. The tax on charges

11  for prepaid calling arrangements shall be collected at the

12  time of sale and remitted by the selling dealer.

13         (I)  "Prepaid calling arrangement" means the separately

14  stated retail sale by advance payment of communications

15  services that consist exclusively of telephone calls

16  originated by using an access number, authorization code, or

17  other means that may be manually, electronically, or otherwise

18  entered and that are sold in predetermined units or dollars

19  whose number declines with use in a known amount.

20         (II)  The sale or recharge of the prepaid calling

21  arrangement is deemed to take place in accordance with s.

22  212.06(3)(d). In the case of a sale of a mobile communications

23  service that is a prepaid calling arrangement, the retail sale

24  is sourced at If the sale or recharge of the prepaid calling

25  arrangement does not take place at the dealer's place of

26  business, it shall be deemed to take place at the customer's

27  shipping address or, if no item is shipped, at the customer's

28  address or the location associated with the customer's mobile

29  telephone number.

30         (III)  The sale or recharge of a prepaid calling

31  arrangement shall be treated as a sale of tangible personal

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 1  property for purposes of this chapter, whether or not a

 2  tangible item evidencing such arrangement is furnished to the

 3  purchaser, and such sale within this state subjects the

 4  selling dealer to the jurisdiction of this state for purposes

 5  of this subsection.

 6         b.  The installation of telecommunication and

 7  telegraphic equipment.

 8         c.  Electrical power or energy, except that the tax

 9  rate for charges for electrical power or energy is 7 percent.

10         2.  The provisions of s. 212.17(3), regarding credit

11  for tax paid on charges subsequently found to be worthless,

12  shall be equally applicable to any tax paid under the

13  provisions of this section on charges for prepaid calling

14  arrangements, telecommunication or telegraph services, or

15  electric power subsequently found to be uncollectible. The

16  word "charges" in this paragraph does not include any excise

17  or similar tax levied by the Federal Government, any political

18  subdivision of the state, or any municipality upon the

19  purchase, sale, or recharge of prepaid calling arrangements or

20  upon the purchase or sale of telecommunication, television

21  system program, or telegraph service or electric power, which

22  tax is collected by the seller from the purchaser.

23         Section 4.  Section 212.054, Florida Statutes, is

24  amended to read:

25         212.054  Discretionary sales surtax; limitations,

26  administration, and collection.--

27         (1)  No general excise tax on sales shall be levied by

28  the governing body of any county unless specifically

29  authorized in s. 212.055. Any general excise tax on sales

30  authorized pursuant to said section shall be administered and

31  collected exclusively as provided in this section.

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 1         (2)(a)  The tax imposed by the governing body of any

 2  county authorized to so levy pursuant to s. 212.055 shall be a

 3  discretionary surtax on all transactions occurring in the

 4  county which transactions are subject to the state tax imposed

 5  on sales, use, services, rentals, admissions, and other

 6  transactions by this chapter and communications services as

 7  defined for purposes of chapter 202. The surtax, if levied,

 8  shall be computed as the applicable rate or rates authorized

 9  pursuant to s. 212.055 times the amount of taxable sales and

10  taxable purchases representing such transactions.  If the

11  surtax is levied on the sale of an item of tangible personal

12  property or on the sale of a service, the surtax shall be

13  computed by multiplying the rate imposed by the county within

14  which the sale occurs by the amount of the taxable sale. The

15  sale of an item of tangible personal property or the sale of a

16  service is not subject to the surtax if the property, the

17  service, or the tangible personal property representing the

18  service is delivered within a county that does not impose a

19  discretionary sales surtax.

20         (b)  However:

21         1.  The sales amount above $5,000 on any item of

22  tangible personal property shall not be subject to the surtax.

23  However, charges for prepaid calling arrangements, as defined

24  in s. 212.05(1)(e)1.a., shall be subject to the surtax. For

25  purposes of administering the $5,000 limitation on an item of

26  tangible personal property, if two or more taxable items of

27  tangible personal property are sold to the same purchaser at

28  the same time and, under generally accepted business practice

29  or industry standards or usage, are normally sold in bulk or

30  are items that, when assembled, comprise a working unit or

31  part of a working unit, such items must be considered a single

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 1  item for purposes of the $5,000 limitation when supported by a

 2  charge ticket, sales slip, invoice, or other tangible evidence

 3  of a single sale or rental.

 4         2.  In the case of utility services covering a period

 5  starting before and ending after the effective date of the

 6  surtax, the rate applies as follows:

 7         a.  In the case of a rate adoption or increase, the new

 8  rate applies to the first billing period starting on or after

 9  the effective date of the surtax or increase.

10         b.  In the case of a rate decrease or termination, the

11  new rate applies to bills rendered on or after the effective

12  date of the rate change. billed on or after the effective date

13  of any such surtax, the entire amount of the charge for

14  utility services shall be subject to the surtax. In the case

15  of utility services billed after the last day the surtax is in

16  effect, the entire amount of the charge on said items shall

17  not be subject to the surtax.

18  

19  "Utility service," as used in this section, does not include

20  any communications services as defined in chapter 202.

21         3.  In the case of written contracts which are signed

22  prior to the effective date of any such surtax for the

23  construction of improvements to real property or for

24  remodeling of existing structures, the surtax shall be paid by

25  the contractor responsible for the performance of the

26  contract.  However, the contractor may apply for one refund of

27  any such surtax paid on materials necessary for the completion

28  of the contract.  Any application for refund shall be made no

29  later than 15 months following initial imposition of the

30  surtax in that county.  The application for refund shall be in

31  the manner prescribed by the department by rule.  A complete

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 1  application shall include proof of the written contract and of

 2  payment of the surtax.  The application shall contain a sworn

 3  statement, signed by the applicant or its representative,

 4  attesting to the validity of the application.  The department

 5  shall, within 30 days after approval of a complete

 6  application, certify to the county information necessary for

 7  issuance of a refund to the applicant. Counties are hereby

 8  authorized to issue refunds for this purpose and shall set

 9  aside from the proceeds of the surtax a sum sufficient to pay

10  any refund lawfully due.  Any person who fraudulently obtains

11  or attempts to obtain a refund pursuant to this subparagraph,

12  in addition to being liable for repayment of any refund

13  fraudulently obtained plus a mandatory penalty of 100 percent

14  of the refund, is guilty of a felony of the third degree,

15  punishable as provided in s. 775.082, s. 775.083, or s.

16  775.084.

17         4.  In the case of any vessel, railroad, or motor

18  vehicle common carrier entitled to partial exemption from tax

19  imposed under this chapter pursuant to s. 212.08(4), (8), or

20  (9), the basis for imposition of surtax shall be the same as

21  provided in s. 212.08 and the ratio shall be applied each

22  month to total purchases in this state of property qualified

23  for proration which is delivered or sold in the taxing county

24  to establish the portion used and consumed in intracounty

25  movement and subject to surtax.

26         (3)  Except as otherwise provided in this section, a

27  surtax applies to a retail sale, lease, or rental of tangible

28  personal property, a digital good, or a service when, under s.

29  212.06(3), the transaction occurs in a county that imposes a

30  surtax under s. 212.055.

31  

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 1         (4)(3)  To determine whether a transaction occurs in a

 2  county imposing a surtax, the following provisions apply For

 3  the purpose of this section, a transaction shall be deemed to

 4  have occurred in a county imposing the surtax when:

 5         (a)1.  The retail sale of a modular or manufactured

 6  home, not including a mobile home, occurs in the county to

 7  which the house is delivered. The sale includes an item of

 8  tangible personal property, a service, or tangible personal

 9  property representing a service, and the item of tangible

10  personal property, the service, or the tangible personal

11  property representing the service is delivered within the

12  county.  If there is no reasonable evidence of delivery of a

13  service, the sale of a service is deemed to occur in the

14  county in which the purchaser accepts the bill of sale.

15         (b)2.  The retail sale, excluding a lease or rental, of

16  any motor vehicle that does not qualify as transportation

17  equipment, as defined in s. 212.06(3)(g), or the retail sale

18  of a The sale of any motor vehicle or mobile home of a class

19  or type that which is required to be registered in this state

20  or in any other state occurs shall be deemed to have occurred

21  only in the county identified from as the residential

22  residence address of the purchaser on the registration or

23  title document for the such property.

24         (c)  A lease or rental of real property occurs in the

25  county in which the real property is located.

26         (d)  A transient rental transaction occurs in the

27  county in which the rental property is located.

28         (e)(b)  Admission charged for an event occurs The event

29  for which an admission is charged is located in the county in

30  which the event is held.

31  

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 1         (f)  A transaction made from a coin-operated amusement

 2  or vending machine occurs in the county in which the machine

 3  is located.

 4         (g)  An original order to sell tangible personal

 5  property taken by a florist occurs in the county in which the

 6  florist taking the order is located.

 7         (c)  The consumer of utility services is located in the

 8  county.

 9         (h)(d)1.  The retail sale, excluding the lease or

10  rental, of any aircraft that does not qualify as

11  transportation equipment, as defined in s. 212.06(3)(g), or of

12  any boat of a class or type that is required to be registered,

13  licensed, titled, or documented in this state or by the United

14  States Government occurs in the county to which the aircraft

15  or boat is delivered.

16         2.  The use user of any aircraft or boat of a class or

17  type that which is required to be registered, licensed,

18  titled, or documented in this state or by the United States

19  Government imported into the county for use, consumption,

20  distribution, or storage to be used or consumed occurs in the

21  county in which the user is located in the county.

22         3.2.  However, it shall be presumed that such items

23  used outside the taxing county for 6 months or longer before

24  being imported into the county were not purchased for use in

25  the county, except as provided in s. 212.06(8)(b).

26         4.3.  This paragraph does not apply to the use or

27  consumption of items upon which a like tax of equal or greater

28  amount has been lawfully imposed and paid outside the county.

29         (i)(e)  The purchase purchaser of any motor vehicle or

30  mobile home of a class or type that which is required to be

31  registered in this state occurs in the county identified from

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 1  the residential address of the purchaser is a resident of the

 2  taxing county as determined by the address appearing on or to

 3  be reflected on the registration document for the such

 4  property.

 5         (j)(f)1.  The use, consumption, distribution, or

 6  storage of a Any motor vehicle or mobile home of a class or

 7  type that which is required to be registered in this state and

 8  that is imported from another state occurs in the county to

 9  which it is imported into the taxing county by a user residing

10  therein for the purpose of use, consumption, distribution, or

11  storage in the taxing county.

12         2.  However, it shall be presumed that such items used

13  outside the taxing county for 6 months or longer before being

14  imported into the county were not purchased for use in the

15  county.

16         (g)  The real property which is leased or rented is

17  located in the county.

18         (h)  The transient rental transaction occurs in the

19  county.

20         (i)  The delivery of any aircraft or boat of a class or

21  type which is required to be registered, licensed, titled, or

22  documented in this state or by the United States Government is

23  to a location in the county. However, this paragraph does not

24  apply to the use or consumption of items upon which a like tax

25  of equal or greater amount has been lawfully imposed and paid

26  outside the county.

27         (k)(j)  A transaction occurs in a taxing county when

28  the dealer owing a use tax on purchases or leases is located

29  in the county.

30         (k)  The delivery of tangible personal property other

31  than that described in paragraph (d), paragraph (e), or

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 1  paragraph (f) is made to a location outside the county, but

 2  the property is brought into the county within 6 months after

 3  delivery, in which event, the owner must pay the surtax as a

 4  use tax.

 5         (l)  The coin-operated amusement or vending machine is

 6  located in the county.

 7         (m)  The florist taking the original order to sell

 8  tangible personal property is located in the county,

 9  notwithstanding any other provision of this section.

10         (5)(4)(a)  The department shall administer, collect,

11  and enforce the tax authorized under s. 212.055 pursuant to

12  the same procedures used in the administration, collection,

13  and enforcement of the general state sales tax imposed under

14  the provisions of this chapter, except as provided in this

15  section.  The provisions of this chapter regarding interest

16  and penalties on delinquent taxes shall apply to the surtax.

17  Discretionary sales surtaxes shall not be included in the

18  computation of estimated taxes pursuant to s. 212.11.

19  Notwithstanding any other provision of law, a dealer need not

20  separately state the amount of the surtax on the charge

21  ticket, sales slip, invoice, or other tangible evidence of

22  sale.  For the purposes of this section and s. 212.055, the

23  "proceeds" of any surtax means all funds collected and

24  received by the department pursuant to a specific

25  authorization and levy under s. 212.055, including any

26  interest and penalties on delinquent surtaxes.

27         (b)  The proceeds of a discretionary sales surtax

28  collected by the selling dealer located in a county which

29  imposes the surtax shall be returned, less the cost of

30  administration, to the county where the selling dealer is

31  located. The proceeds shall be transferred to the

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 1  Discretionary Sales Surtax Clearing Trust Fund. A separate

 2  account shall be established in such trust fund for each

 3  county imposing a discretionary surtax.  The amount deducted

 4  for the costs of administration shall not exceed 3 percent of

 5  the total revenue generated for all counties levying a surtax

 6  authorized in s. 212.055.  The amount deducted for the costs

 7  of administration shall be used only for those costs which are

 8  solely and directly attributable to the surtax.  The total

 9  cost of administration shall be prorated among those counties

10  levying the surtax on the basis of the amount collected for a

11  particular county to the total amount collected for all

12  counties.  No later than March 1 of each year, the department

13  shall submit a written report which details the expenses and

14  amounts deducted for the costs of administration to the

15  President of the Senate, the Speaker of the House of

16  Representatives, and the governing authority of each county

17  levying a surtax.  The department shall distribute the moneys

18  in the trust fund each month to the appropriate counties,

19  unless otherwise provided in s. 212.055.

20         (c)1.  Any dealer located in a county that does not

21  impose a discretionary sales surtax but who collects the

22  surtax due to sales of tangible personal property or services

23  delivered outside the county shall remit monthly the proceeds

24  of the surtax to the department to be deposited into an

25  account in the Discretionary Sales Surtax Clearing Trust Fund

26  which is separate from the county surtax collection accounts.

27  The department shall distribute funds in this account using a

28  distribution factor determined for each county that levies a

29  surtax and multiplied by the amount of funds in the account

30  and available for distribution.  The distribution factor for

31  each county equals the product of:

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 1         a.  The county's latest official population determined

 2  pursuant to s. 186.901;

 3         b.  The county's rate of surtax; and

 4         c.  The number of months the county has levied a surtax

 5  during the most recent distribution period;

 6  

 7  divided by the sum of all such products of the counties

 8  levying the surtax during the most recent distribution period.

 9         2.  The department shall compute distribution factors

10  for eligible counties once each quarter and make appropriate

11  quarterly distributions.

12         3.  A county that fails to timely provide the

13  information required by this section to the department

14  authorizes the department, by such action, to use the best

15  information available to it in distributing surtax revenues to

16  the county.  If this information is unavailable to the

17  department, the department may partially or entirely

18  disqualify the county from receiving surtax revenues under

19  this paragraph.  A county that fails to provide timely

20  information waives its right to challenge the department's

21  determination of the county's share, if any, of revenues

22  provided under this paragraph.

23         (5)  No discretionary sales surtax or increase or

24  decrease in the rate of any discretionary sales surtax shall

25  take effect on a date other than January 1.  No discretionary

26  sales surtax shall terminate on a day other than December 31.

27         (6)  The governing body of any county levying a

28  discretionary sales surtax shall enact an ordinance levying

29  the surtax in accordance with the procedures described in s.

30  125.66(2).

31  

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 1         (7)(a)  Any adoption, repeal, or rate change of the

 2  surtax by the governing body of any county levying a

 3  discretionary sales surtax or the school board of any county

 4  levying the school capital outlay surtax authorized by s.

 5  212.055(6) is effective on April 1. A county or school board

 6  adopting, repealing, or changing the rate of such tax shall

 7  notify the department within 10 days after final adoption by

 8  ordinance or referendum of an adoption, repeal imposition,

 9  termination, or rate change of the surtax, but no later than

10  November 16 immediately preceding such April 1 November 16

11  prior to the effective date. The notice must specify the time

12  period during which the surtax will be in effect and the rate

13  and must include a copy of the ordinance and such other

14  information as the department requires by rule. Failure to

15  timely provide such notification to the department shall

16  result in the delay of the effective date for a period of 1

17  year.

18         (b)  In addition to the notification required by

19  paragraph (a), the governing body of any county proposing to

20  levy a discretionary sales surtax or the school board of any

21  county proposing to levy the school capital outlay surtax

22  authorized by s. 212.055(6) shall notify the department by

23  October 1 if the referendum or consideration of the ordinance

24  that would result in imposition, termination, or rate change

25  of the surtax is scheduled to occur on or after October 1 of

26  that year. Failure to timely provide such notification to the

27  department shall result in the delay of the effective date for

28  a period of 1 year.

29         (c)  The department shall provide notice of the

30  adoption, repeal, or change to affected sellers by December 1

31  immediately preceding the April 1 effective date.

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 1         (d)  Notwithstanding any ordinance provision to the

 2  contrary regarding the termination date of a surtax, a surtax

 3  may be terminated only on an April 1st. A surtax imposed

 4  before January 1, 2006, for which an ordinance provides a

 5  different termination date shall terminate on the April 1st

 6  following the termination date established in the ordinance.

 7         (8)  With respect to any motor vehicle or mobile home

 8  of a class or type which is required to be registered in this

 9  state, the tax due on a transaction occurring in the taxing

10  county as herein provided shall be collected from the

11  purchaser or user incident to the titling and registration of

12  such property, irrespective of whether such titling or

13  registration occurs in the taxing county.

14         (9)  For the purpose of the state providing and

15  maintaining a database of all sales and use tax rates for all

16  local taxing jurisdictions in accordance with the Streamlined

17  Sales and Use Tax Agreement under s. 213.256, s. 202.22(2)

18  applies.

19         (a)  A seller or certified service provider who

20  collects and remits the state and local tax imposed by this

21  chapter shall be held harmless from tax, interest, and

22  penalties due solely as a result of relying on erroneous data

23  on tax rates, boundaries, or taxing jurisdiction assignments

24  provided by the state if the seller or certified service

25  provider exercises due diligence in applying one or more of

26  the following methods for determining the taxing jurisdiction

27  and tax rate for a transaction:

28         1.  Employing an electronic database provided by the

29  department under s. 202.22(2); or

30  

31  

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 1         2.  Employing a database that has been approved by the

 2  governing board and was developed by a seller or certified

 3  service provider.

 4         (b)  If a seller or certified service provider does not

 5  use one of the methods specified in paragraph (a), the seller

 6  or certified service provider may be held liable to the

 7  department for tax, interest, and penalties that are due for

 8  charging and collecting the incorrect amount of tax.

 9         Section 5.  Present subsections (3) through (16) of

10  section 212.06, Florida Statutes, are renumbered as

11  subsections (4) through (17), respectively, new subsection (3)

12  is added to that section, and present subsection (3) of that

13  section is amended to read:

14         212.06  Sales, storage, use tax; collectible from

15  dealers; "dealer" defined; dealers to collect from purchasers;

16  legislative intent as to scope of tax.--

17         (3)  This subsection must be used to determine the

18  location where a transaction occurs for purposes of applying

19  the tax imposed by this chapter.

20         (a)  For purposes of this subsection, the terms

21  "receive" and "receipt" mean:

22         1.  Taking possession of tangible personal property;

23         2.  Making first use of services; or

24         3.  Taking possession or making first use of digital

25  goods, whichever occurs first.

26  

27  The terms do not include possession by a shipping company on

28  behalf of the purchaser.

29         (b)  For purposes of this subsection, the term

30  "product" means tangible personal property, a digital good, or

31  a service.

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 1         (c)  This section does not apply to the sales or use

 2  taxes levied on:

 3         1.  The retail sale or transfer of a boat, modular

 4  home, manufactured home, or mobile home.

 5         2.  The retail sale, excluding a lease or rental, of a

 6  motor vehicle or aircraft that does not qualify as

 7  transportation equipment, as defined in paragraph (g). The

 8  lease or rental of these items shall be deemed to have

 9  occurred in accordance with paragraph (f).

10         3.  The retail sale of tangible personal property by a

11  florist.

12  

13  Such retail sales are deemed to take place at the location

14  determined under s. 212.054(4).

15         (d)  The retail sale of a product, excluding a lease or

16  rental, shall be deemed to take place:

17         1.  When the product is received by the purchaser at a

18  business location of the seller, at that business location.

19         2.  When the product is not received by the purchaser

20  at a business location of the seller, at the location where

21  receipt by the purchaser, or the purchaser's donee, designated

22  as such by the purchaser, occurs, including the location

23  indicated by instructions for delivery to the purchaser or

24  donee, known to the seller.

25         3.  When subparagraphs 1. and 2. do not apply, at the

26  location indicated by an address for the purchaser which is

27  available from the business records of the seller which are

28  maintained in the ordinary course of the seller's business,

29  when use of this address does not constitute bad faith.

30         4.  When subparagraphs 1., 2., and 3. do not apply, at

31  the location indicated by an address for the purchaser

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 1  obtained during the consummation of the sale, including the

 2  address of a purchaser's payment instrument, if no other

 3  address is available, when use of this address does not

 4  constitute bad faith.

 5         5.  When subparagraphs 1., 2., 3., and 4. do not apply,

 6  including when the seller is without sufficient information to

 7  apply the previous paragraphs, the address from which tangible

 8  personal property was shipped, from which the digital good or

 9  the computer software delivered electronically was first

10  available for transmission by the seller, or from which the

11  service was provided, disregarding any location that merely

12  provided the digital transfer of the product sold.

13         (e)  The lease or rental of tangible personal property,

14  other than property identified in paragraphs (f) and (g),

15  shall be deemed to have occurred as follows:

16         1.  For a lease or rental that requires recurring

17  periodic payments, the first periodic payment is deemed to

18  take place in accordance with paragraph (d), notwithstanding

19  the exclusion of lease or rental in paragraph (d). Subsequent

20  periodic payments are deemed to have occurred at the primary

21  property location for each period covered by the payment. The

22  primary property location is determined by an address for the

23  property provided by the lessee which is available to the

24  lessor from its records maintained in the ordinary course of

25  business, when use of this address does not constitute bad

26  faith. The property location is not altered by intermittent

27  use of the property at different locations, such as use of

28  business property that accompanies employees on business trips

29  and service calls.

30         2.  For a lease or rental that does not require

31  recurring periodic payments, the payment is deemed to take

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 1  place in accordance with paragraph (d), notwithstanding the

 2  exclusion of a lease or rental in paragraph (d).

 3         3.  This paragraph does not affect the imposition or

 4  computation of sales or use tax on leases or rentals based on

 5  a lump sum or accelerated basis or on the acquisition of

 6  property for lease.

 7         (f)  The lease or rental of a motor vehicle or aircraft

 8  that does not qualify as transportation equipment, as defined

 9  in paragraph (g), shall be sourced as follows:

10         1.  For a lease or rental that requires recurring

11  periodic payments, each periodic payment is deemed to take

12  place at the primary property location. The primary property

13  location shall be determined by an address for the property

14  provided by the lessee which is available to the lessor from

15  its records maintained in the ordinary course of business,

16  when use of this address does not constitute bad faith. This

17  location may not be altered by intermittent use at different

18  locations.

19         2.  For a lease or rental that does not require

20  recurring periodic payments, the payment is deemed to take

21  place in accordance with paragraph (d), notwithstanding the

22  exclusion of a lease or rental in paragraph (d).

23         3.  This paragraph does not affect the imposition or

24  computation of sales or use tax on leases or rentals based on

25  a lump sum or accelerated basis or on the acquisition of

26  property for lease.

27         (g)  The retail sale, including lease or rental, of

28  transportation equipment shall be deemed to take place in

29  accordance with paragraph (d), notwithstanding the exclusion

30  of a lease or rental in paragraph (d). The term

31  "transportation equipment" means:

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 1         1.  Locomotives and rail cars that are used for the

 2  carriage of persons or property in interstate commerce;

 3         2.  Trucks and truck tractors with a Gross Vehicle

 4  Weight Rating (GVWR) of 10,001 pounds or greater, trailers,

 5  semitrailers, or passenger buses that are registered through

 6  the International Registration Plan and operated under

 7  authority of a carrier authorized and certificated by the

 8  United States Department of Transportation or another federal

 9  authority to engage in the carriage of persons or property in

10  interstate commerce;

11         3.  Aircraft that are operated by air carriers

12  authorized and certificated by the United States Department of

13  Transportation or another federal or a foreign authority to

14  engage in the carriage of persons or property in interstate or

15  foreign commerce; or

16         4.  Containers designed for use on and component parts

17  attached or secured on the items set forth in subparagraphs 1.

18  through 3.

19         (4)(3)(a)  Except as provided in paragraphs (a) and

20  paragraph (b), every dealer making retail sales, whether

21  within or outside the state, of tangible personal property for

22  distribution, storage, or use or other consumption, in this

23  state, shall, at the time of making sales, collect the tax

24  imposed by this chapter from the purchaser.

25         (a)  Notwithstanding subsection (3), a business

26  purchaser that is not a holder of a direct-pay permit and that

27  knows at the time of purchase of a digital good, computer

28  software delivered electronically, or a service that the

29  digital good, computer software delivered electronically, or

30  service will be concurrently available for use in more than

31  one jurisdiction shall deliver to the dealer a multiple points

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 1  of use exemption form (MPU exemption form) at the time of

 2  purchase.

 3         1.  Upon receipt of the MPU exemption form, the seller

 4  is relieved of all obligation to collect, pay, or remit the

 5  applicable tax, and the purchaser is obligated to collect,

 6  pay, or remit the applicable tax on a direct-pay basis.

 7         2.  A purchaser delivering the MPU exemption form may

 8  use any reasonable, but consistent and uniform, method of

 9  apportionment which is supported by the purchaser's business

10  records as they exist at the time of the consummation of the

11  sale.

12         3.  The MPU exemption form remains in effect for all

13  future sales by the seller to the purchaser, except as to the

14  subsequent sale's specific apportionment that is governed by

15  the principle of subparagraph 2. and the facts existing at the

16  time of the sale, until the MPU exemption form is revoked in

17  writing.

18         4.  A holder of a direct-pay permit is not required to

19  deliver an MPU exemption form to the seller. A direct-pay

20  permitholder shall follow the provisions of subparagraph 2. in

21  apportioning the tax due on a digital good or a service that

22  will be concurrently available for use in more than one

23  jurisdiction.

24         (b)1.  Notwithstanding subsection (3), a purchaser of

25  direct mail which is not a holder of a direct-pay permit shall

26  provide to the seller in conjunction with the purchase a

27  direct mail form or information to show the jurisdictions to

28  which the direct mail is delivered to recipients. Upon receipt

29  of the direct mail form, the seller is relieved of all

30  obligations to collect, pay, or remit the applicable tax, and

31  the purchaser is obligated to pay or remit the applicable tax

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 1  on a direct-pay basis. A direct mail form remains in effect

 2  for all future sales of direct mail by the seller to the

 3  purchaser until it is revoked in writing.

 4         2.  Upon receipt of information from the purchaser

 5  showing the jurisdictions to which the direct mail is

 6  delivered to recipients, the seller shall collect the tax

 7  according to the delivery information provided by the

 8  purchaser. In the absence of bad faith, the seller is relieved

 9  of any further obligation to collect tax on any transaction

10  for which the seller has collected tax pursuant to the

11  delivery information provided by the purchaser.

12         3.  If the purchaser of direct mail does not have a

13  direct-pay permit and does not provide the seller with a

14  direct mail form or delivery information as required by

15  subparagraph 1., the seller shall collect the tax according to

16  subparagraph (3)(d)5. This paragraph does not limit a

17  purchaser's obligation for sales or use tax to any state to

18  which the direct mail is delivered.

19         4.  If a purchaser of direct mail provides the seller

20  with documentation of direct-pay authority, the purchaser is

21  not required to provide a direct mail form or delivery

22  information to the seller. A purchaser of printed materials

23  shall have sole responsibility for the taxes imposed by this

24  chapter on those materials when the printer of the materials

25  delivers them to the United States Postal Service for mailing

26  to persons other than the purchaser located within and outside

27  this state. Printers of materials delivered by mail to persons

28  other than the purchaser located within and outside this state

29  shall have no obligation or responsibility for the payment or

30  collection of any taxes imposed under this chapter on those

31  materials. However, printers are obligated to collect the

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 1  taxes imposed by this chapter on printed materials when all,

 2  or substantially all, of the materials will be mailed to

 3  persons located within this state. For purposes of the

 4  printer's tax collection obligation, there is a rebuttable

 5  presumption that all materials printed at a facility are

 6  mailed to persons located within the same state as that in

 7  which the facility is located.  A certificate provided by the

 8  purchaser to the printer concerning the delivery of the

 9  printed materials for that purchase or all purchases shall be

10  sufficient for purposes of rebutting the presumption created

11  herein.

12         5.2.  The Department of Revenue is authorized to adopt

13  rules and forms to implement the provisions of this paragraph.

14         Section 6.  Subsections (1) and (2) of section 212.08,

15  Florida Statutes, are amended to read:

16         212.08  Sales, rental, use, consumption, distribution,

17  and storage tax; specified exemptions.--The sale at retail,

18  the rental, the use, the consumption, the distribution, and

19  the storage to be used or consumed in this state of the

20  following are hereby specifically exempt from the tax imposed

21  by this chapter.

22         (1)  EXEMPTIONS; GENERAL GROCERIES.--

23         (a)  Food and food ingredients products for human

24  consumption are exempt from the tax imposed by this chapter.

25         (b)  For the purpose of this chapter, as used in this

26  subsection, the term "food and food ingredients products"

27  means substances, whether in liquid, concentrated, solid,

28  frozen, dried, or dehydrated form, which are sold for

29  ingestion or chewing by humans and are consumed for their

30  taste or nutritional value edible commodities, whether

31  processed, cooked, raw, canned, or in any other form, which

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 1  are generally regarded as food. This includes, but is not

 2  limited to, all of the following:

 3         1.  Cereals and cereal products, baked goods,

 4  oleomargarine, meat and meat products, fish and seafood

 5  products, frozen foods and dinners, poultry, eggs and egg

 6  products, vegetables and vegetable products, fruit and fruit

 7  products, spices, salt, sugar and sugar products, milk and

 8  dairy products, and products intended to be mixed with milk.

 9         2.  Natural fruit or vegetable juices or their

10  concentrates or reconstituted natural concentrated fruit or

11  vegetable juices, whether frozen or unfrozen, dehydrated,

12  powdered, granulated, sweetened or unsweetened, seasoned with

13  salt or spice, or unseasoned; coffee, coffee substitutes, or

14  cocoa; and tea, unless it is sold in a liquid form.

15         1.3.  Bakery products sold by bakeries, pastry shops,

16  or like establishments, if sold without eating utensils.

17  Bakery products for purposes of this subsection include bread,

18  rolls, buns, biscuits, bagels, croissants, pastries,

19  doughnuts, danish, cakes, tortes, pies, tarts, muffins, bars,

20  cookies, and tortillas that do not have eating facilities.

21         2.  Dietary supplements. The term "dietary supplements"

22  means any product, other than tobacco, intended to supplement

23  the diet which contains one or more of the following dietary

24  ingredients: a vitamin; a mineral; an herb or other botanical;

25  an amino acid; a dietary substance for use by humans to

26  supplement the diet by increasing the total dietary intake; or

27  a concentrate, metabolite, constituent, extract, or

28  combination of any ingredient described in this subparagraph

29  which is intended for ingestion in tablet, capsule, powder,

30  softgel, gelcap, or liquid form or, if not intended for

31  ingestion in such a form, is not represented as conventional

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 1  food and is not represented for use as a sole item of a meal

 2  or of the diet, and which is required to be labeled as a

 3  dietary supplement, identifiable by the "supplemental facts"

 4  box found on the label and as required pursuant to 21 C.F.R.

 5  s. 101.36.

 6         (c)  The exemption provided by this subsection does not

 7  apply:

 8         1.  When the food products are sold as meals for

 9  consumption on or off the premises of the dealer.

10         2.  When the food products are furnished, prepared, or

11  served for consumption at tables, chairs, or counters or from

12  trays, glasses, dishes, or other tableware, whether provided

13  by the dealer or by a person with whom the dealer contracts to

14  furnish, prepare, or serve food products to others.

15         3.  When the food products are ordinarily sold for

16  immediate consumption on the seller's premises or near a

17  location at which parking facilities are provided primarily

18  for the use of patrons in consuming the products purchased at

19  the location, even though such products are sold on a "take

20  out" or "to go" order and are actually packaged or wrapped and

21  taken from the premises of the dealer.

22         4.  To sandwiches sold ready for immediate consumption

23  on or off the seller's premises.

24         5.  When the food products are sold ready for immediate

25  consumption within a place, the entrance to which is subject

26  to an admission charge.

27         1.6.  When the food and food ingredients products are

28  sold as hot prepared food products. As used in this

29  subparagraph, the term "prepared food" means food sold in a

30  heated state or heated by the seller; two or more food

31  ingredients mixed or combined by the seller for sale as a

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 1  single item; or food sold with eating utensils provided by the

 2  seller, including plates, knives, forks, spoons, glasses,

 3  cups, napkins, or straws. A plate does not include a container

 4  or packaging used to transport the food. Prepared food does

 5  not include food that is only cut, repackaged, or pasteurized

 6  by the seller and eggs, fish, meat, poultry, and foods

 7  containing these raw animal foods requiring cooking by the

 8  consumer as recommended by the Food and Drug Administration in

 9  chapter 3, part 401.11 of its food code so as to prevent

10  food-borne illnesses. Prepared food, for purposes of this

11  subparagraph, includes sandwiches sold for immediate

12  consumption and a combination of hot and cold food items or

13  components where a single price has been established for the

14  combination and the food products are sold in such

15  combination, such as a meal; a specialty dish or serving; a

16  sandwich or pizza; an ice cream cone, sundae, or banana split;

17  or food sold in an unheated state by weight or volume as a

18  single item, including cold components or side items.

19         2.7.  To soft drinks, which include, but are not

20  limited to, any nonalcoholic beverage, any preparation or

21  beverage commonly referred to as a "soft drink," or any

22  noncarbonated drink made from milk derivatives or tea, when

23  sold in cans or similar containers. The term "soft drinks"

24  means nonalcoholic beverages that contain natural or

25  artificial sweeteners. Soft drinks do not include beverages

26  that contain milk or milk products, soy, rice, or similar milk

27  substitutes, or greater than 50 percent of vegetable or fruit

28  juice by volume.

29         8.  To ice cream, frozen yogurt, and similar frozen

30  dairy or nondairy products in cones, small cups, or pints,

31  

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 1  popsicles, frozen fruit bars, or other novelty items, whether

 2  or not sold separately.

 3         9.  To food prepared, whether on or off the premises,

 4  and sold for immediate consumption. This does not apply to

 5  food prepared off the premises and sold in the original sealed

 6  container, or the slicing of products into smaller portions.

 7         3.10.  When the food and food ingredients products are

 8  sold through a vending machine, pushcart, motor vehicle, or

 9  any other form of vehicle.

10         4.11.  To candy and any similar product regarded as

11  candy or confection, based on its normal use, as indicated on

12  the label or advertising thereof. The term "candy" means a

13  preparation of sugar, honey, or other natural or artificial

14  sweeteners in combination with chocolate, fruits, nuts, or

15  other ingredients or flavorings in the form of bars, drops, or

16  pieces. Candy does not include any preparation that contains

17  flour and does not require refrigeration.

18         5.  To tobacco.

19         12.  To bakery products sold by bakeries, pastry shops,

20  or like establishments that have eating facilities, except

21  when sold for consumption off the seller's premises.

22         13.  When food products are served, prepared, or sold

23  in or by restaurants, lunch counters, cafeterias, hotels,

24  taverns, or other like places of business.

25         (d)  As used in this subsection, the term:

26         1.  "For consumption off the seller's premises" means

27  that the food or drink is intended by the customer to be

28  consumed at a place away from the dealer's premises.

29         2.  "For consumption on the seller's premises" means

30  that the food or drink sold may be immediately consumed on the

31  premises where the dealer conducts his or her business. In

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 1  determining whether an item of food is sold for immediate

 2  consumption, there shall be considered the customary

 3  consumption practices prevailing at the selling facility.

 4         3.  "Premises" shall be construed broadly, and means,

 5  but is not limited to, the lobby, aisle, or auditorium of a

 6  theater; the seating, aisle, or parking area of an arena,

 7  rink, or stadium; or the parking area of a drive-in or outdoor

 8  theater. The premises of a caterer with respect to catered

 9  meals or beverages shall be the place where such meals or

10  beverages are served.

11         4.  "Hot Prepared food products" means those products,

12  items, or components which have been prepared for sale in a

13  heated condition and which are sold at any temperature that is

14  higher than the air temperature of the room or place where

15  they are sold. "Hot prepared food products," for the purposes

16  of this subsection, includes a combination of hot and cold

17  food items or components where a single price has been

18  established for the combination and the food products are sold

19  in such combination, such as a hot meal, a hot specialty dish

20  or serving, or a hot sandwich or hot pizza, including cold

21  components or side items.

22         (d)(e)1.  Food or drinks not exempt under paragraphs

23  (a), (b), and (c), and (d) shall be exempt, notwithstanding

24  those paragraphs, when purchased with food coupons or Special

25  Supplemental Food Program for Women, Infants, and Children

26  vouchers issued under authority of federal law.

27         2.  This paragraph is effective only while federal law

28  prohibits a state's participation in the federal food coupon

29  program or Special Supplemental Food Program for Women,

30  Infants, and Children if there is an official determination

31  

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 1  that state or local sales taxes are collected within that

 2  state on purchases of food or drinks with such coupons.

 3         3.  This paragraph does shall not apply to any food or

 4  drinks on which federal law permits shall permit sales taxes

 5  without penalty, such as termination of the state's

 6  participation.

 7         (e)  Dietary supplements that are sold as prepared food

 8  are not exempt.

 9         (2)  EXEMPTIONS; MEDICAL.--

10         (a)  There shall be exempt from the tax imposed by this

11  chapter:

12         1.  Any drug;

13         2.  Durable medical equipment, mobility enhancing

14  equipment, or prosthetic device any medical products and

15  supplies or medicine dispensed according to an individual

16  prescription or prescriptions written by a prescriber

17  authorized by law to prescribe medicinal drugs;

18         3.  Hypodermic needles; hypodermic syringes;

19         4.  Chemical compounds and test kits used for the

20  diagnosis or treatment of human disease, illness, or injury

21  and intended for one-time use;

22         5.  Over-the-counter drugs and common household

23  remedies recommended and generally sold for internal or

24  external use in the cure, mitigation, treatment, or prevention

25  of illness or disease in human beings, but not including

26  grooming and hygiene products;

27         6.  Bandaids, gauze, bandages, adhesive tape;

28         7.  Hearing aids;

29         8.  Dental prosthesis; or

30         9.  Funerals.

31  

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 1  Funeral directors shall pay tax on all tangible personal

 2  property used by them in their business. cosmetics or toilet

 3  articles, notwithstanding the presence of medicinal

 4  ingredients therein, according to a list prescribed and

 5  approved by the Department of Health, which list shall be

 6  certified to the Department of Revenue from time to time and

 7  included in the rules promulgated by the Department of

 8  Revenue. There shall also be exempt from the tax imposed by

 9  this chapter artificial eyes and limbs; orthopedic shoes;

10  prescription eyeglasses and items incidental thereto or which

11  become a part thereof; dentures; hearing aids; crutches;

12  prosthetic and orthopedic appliances; and funerals. In

13  addition, any items intended for one-time use which transfer

14  essential optical characteristics to contact lenses are shall

15  be exempt from the tax imposed by this chapter; however, this

16  exemption applies shall apply only after $100,000 of the tax

17  imposed by this chapter on such items has been paid in any

18  calendar year by a taxpayer who claims the exemption in such

19  year. Funeral directors shall pay tax on all tangible personal

20  property used by them in their business.

21         (b)  For the purposes of this subsection, the term:

22         1.  "Drug" means a compound, substance, or preparation,

23  and any component of a compound, substance, or preparation,

24  other than food and food ingredients, dietary supplements, and

25  alcoholic beverages, which is:

26         a.  Recognized in the official United States

27  Pharmacopoeia, official Homeopathic Pharmacopoeia of the

28  United States, or official National Formulary, or the

29  supplement to any of them;

30         b.  Intended for use in the diagnosis, cure,

31  mitigation, treatment, or prevention of disease; or

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 1         c.  Intended to affect the structure or any function of

 2  the body.

 3         2.  "Durable medical equipment" means equipment,

 4  including repair and replacement parts to such equipment, but

 5  excluding mobility-enhancing equipment, which can withstand

 6  repeated use, is primarily and customarily used to serve a

 7  medical purpose, generally is not useful to a person in the

 8  absence of illness or injury, and is not worn on or in the

 9  body.

10         3.  "Mobility-enhancing equipment" means equipment,

11  including repair and replacement parts to such equipment, but

12  excluding durable medical equipment, which:

13         a.  Is primarily and customarily used to provide or

14  increase the ability to move from one place to another and

15  which is appropriate for use either in a home or a motor

16  vehicle;

17         b.  Is not generally used by persons with normal

18  mobility; and

19         c.  Does not include any motor vehicle or any equipment

20  on a motor vehicle normally provided by a motor vehicle

21  manufacturer.

22         4.  "Prosthetic device" means a replacement,

23  corrective, or supportive device, including repair or

24  replacement parts to such equipment, other than a hearing aid

25  or a dental prosthesis, which is worn on or in the body to:

26         a.  Artificially replace a missing portion of the body;

27         b.  Prevent or correct physical deformity or

28  malfunction; or

29         c.  Support a weak or deformed portion of the body.

30         5.  "Grooming and hygiene products" mean soaps and

31  cleaning solutions, shampoo, toothpaste, mouthwash,

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 1  antiperspirants, and suntan lotions and screens, regardless of

 2  whether the items meet the definition of an over-the-counter

 3  drug.

 4         6.  "Over-the-counter drug" means a drug the packaging

 5  for which contains a label that identifies the product as a

 6  drug as required by 21 C.F.R. s. 201.66. The over-the-counter

 7  drug label includes a drug facts panel or a statement of the

 8  active ingredients, with a list of those ingredients contained

 9  in the compound, substance, or preparation. "Prosthetic and

10  orthopedic appliances" means any apparatus, instrument,

11  device, or equipment used to replace or substitute for any

12  missing part of the body, to alleviate the malfunction of any

13  part of the body, or to assist any disabled person in leading

14  a normal life by facilitating such person's mobility.  Such

15  apparatus, instrument, device, or equipment shall be exempted

16  according to an individual prescription or prescriptions

17  written by a physician licensed under chapter 458, chapter

18  459, chapter 460, chapter 461, or chapter 466, or according to

19  a list prescribed and approved by the Department of Health,

20  which list shall be certified to the Department of Revenue

21  from time to time and included in the rules promulgated by the

22  Department of Revenue.

23         2.  "Cosmetics" means articles intended to be rubbed,

24  poured, sprinkled, or sprayed on, introduced into, or

25  otherwise applied to the human body for cleansing,

26  beautifying, promoting attractiveness, or altering the

27  appearance and also means articles intended for use as a

28  compound of any such articles, including, but not limited to,

29  cold creams, suntan lotions, makeup, and body lotions.

30         3.  "Toilet articles" means any article advertised or

31  held out for sale for grooming purposes and those articles

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 1  that are customarily used for grooming purposes, regardless of

 2  the name by which they may be known, including, but not

 3  limited to, soap, toothpaste, hair spray, shaving products,

 4  colognes, perfumes, shampoo, deodorant, and mouthwash.

 5         7.4.  "Prescription" means an order, formula, or recipe

 6  issued in any form of oral, written, electronic, or other

 7  means of transmission by a duly licensed practitioner

 8  authorized by chapter 458, chapter 459, chapter 460, chapter

 9  461, or chapter 466. The term also includes an orally

10  transmitted order by the lawfully designated agent of such

11  practitioner. The term also includes an order written or

12  transmitted by a practitioner licensed to practice in a

13  jurisdiction other than this state, but only if the pharmacist

14  called upon to dispense the order determines, in the exercise

15  of his or her professional judgment, that the order is valid

16  and necessary for the treatment of a chronic or recurrent

17  illness. includes any order for drugs or medicinal supplies

18  written or transmitted by any means of communication by a duly

19  licensed practitioner authorized by the laws of the state to

20  prescribe such drugs or medicinal supplies and intended to be

21  dispensed by a pharmacist. The term also includes an orally

22  transmitted order by the lawfully designated agent of such

23  practitioner. The term also includes an order written or

24  transmitted by a practitioner licensed to practice in a

25  jurisdiction other than this state, but only if the pharmacist

26  called upon to dispense such order determines, in the exercise

27  of his or her professional judgment, that the order is valid

28  and necessary for the treatment of a chronic or recurrent

29  illness. The term also includes a pharmacist's order for a

30  product selected from the formulary created pursuant to s.

31  465.186. A prescription may be retained in written form, or

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 1  the pharmacist may cause it to be recorded in a data

 2  processing system, provided that such order can be produced in

 3  printed form upon lawful request.

 4         (c)  Chlorine is shall not be exempt from the tax

 5  imposed by this chapter when used for the treatment of water

 6  in swimming pools.

 7         (d)  Lithotripters are exempt.

 8         (d)(e)  Human organs are exempt.

 9         (f)  Sales of drugs to or by physicians, dentists,

10  veterinarians, and hospitals in connection with medical

11  treatment are exempt.

12         (g)  Medical products and supplies used in the cure,

13  mitigation, alleviation, prevention, or treatment of injury,

14  disease, or incapacity which are temporarily or permanently

15  incorporated into a patient or client by a practitioner of the

16  healing arts licensed in the state are exempt.

17         (h)  The purchase by a veterinarian of commonly

18  recognized substances possessing curative or remedial

19  properties which are ordered and dispensed as treatment for a

20  diagnosed health disorder by or on the prescription of a duly

21  licensed veterinarian, and which are applied to or consumed by

22  animals for alleviation of pain or the cure or prevention of

23  sickness, disease, or suffering are exempt. Also exempt are

24  the purchase by a veterinarian of antiseptics, absorbent

25  cotton, gauze for bandages, lotions, vitamins, and worm

26  remedies.

27         (i)  X-ray opaques, also known as opaque drugs and

28  radiopaque, such as the various opaque dyes and barium

29  sulphate, when used in connection with medical X rays for

30  treatment of bodies of humans and animals, are exempt.

31  

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 1         (e)(j)  Parts, special attachments, special lettering,

 2  and other like items that are added to or attached to tangible

 3  personal property so that a handicapped person can use them

 4  are exempt when such items are purchased by a person pursuant

 5  to an individual prescription.

 6         (f)(k)  This subsection shall be strictly construed and

 7  enforced.

 8         Section 7.  Section 212.095, Florida Statutes, is

 9  amended to read:

10         212.095  Refunds.--

11         (1)  No exemption granted on a refund basis pursuant to

12  this chapter is authorized except as provided in this section.

13         (2)(a)  No person may secure a refund under this

14  chapter unless such person is the holder of an unrevoked

15  refund permit issued by the department before the purchase for

16  which a refund is sought, which permit shall be numbered and

17  issued annually.

18         (b)  To procure a permit, a person must file with the

19  department an application, on forms furnished by the

20  department, stating that he or she is entitled to a refund

21  according to the provisions of this chapter and that he or she

22  intends to file an application for refund for the current

23  calendar year, and must furnish the department such other

24  information as the department requests.

25         (c)  No person may in any event be allowed a refund

26  unless he or she has filed the application provided for in

27  paragraph (b) with the department. A permit shall be effective

28  on the date issued by the department.

29         (d)  If an applicant for a refund permit has violated

30  any provision of this section or any regulation pursuant

31  hereto, or has been convicted of bribery, theft, or false

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 1  swearing within the period of 5 years preceding the

 2  application, or if the department has evidence of the

 3  financial irresponsibility of the applicant, the department

 4  may require the applicant to execute a corporate surety bond

 5  of $1,000 to be approved by the department, conditioned upon

 6  the payment of all taxes, penalties, and fines for which such

 7  applicant may become liable under this chapter.

 8         (2)(3)(a)  When a sale is made to a person who claims

 9  to be entitled to a refund under this section, the seller

10  shall make out a sales invoice, which shall contain the

11  following information:

12         1.  The name and business address of the purchaser.

13         2.  A description of the item or services sold.

14         3.  The date on which the purchase was made.

15         4.  The price and amount of tax paid for the item or

16  services.

17         5.  The name and place of business of the seller at

18  which the sale was made.

19         6.  The refund permit number of the purchaser.

20         (b)  The sales invoice shall be retained by the

21  purchaser for attachment to his or her application for a

22  refund, as a part thereof. No refund will be allowed unless

23  the seller has executed such an invoice and unless proof of

24  payment of the taxes for which the refund is claimed is

25  attached.  The department may refuse to grant a refund if the

26  invoice is incomplete and fails to contain the full

27  information required in this subsection.

28         (c)  No person may execute a sales invoice, as

29  described in paragraph (a), except a dealer duly registered

30  pursuant to this chapter, or an authorized agent thereof.

31  

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 1         (3)(4)(a)  No refund may be authorized unless a sworn

 2  application therefor containing the information required in

 3  this section is filed with the department not later than 30

 4  days immediately following the quarter for which the refund is

 5  claimed.  When a claim is filed after such 30 days and a

 6  justified excuse for late filing is presented to the

 7  department and the last preceding claim was filed on time,

 8  such late filing may be accepted through 60 days following the

 9  quarter.  No refund will be authorized unless the amount due

10  is for $5 or more in any quarter and unless application is

11  made upon forms prescribed by the department.

12         (b)  Claims shall be filed and paid for each calendar

13  quarter.  The department shall deduct a fee of $2 for each

14  claim, which fee shall be deposited in the General Revenue

15  Fund.

16         (c)  Refund application forms shall include at a

17  minimum the following information:

18         1.  The name and address of the person claiming the

19  refund.

20         2.  The refund permit number of such person.

21         2.3.  The location at which the items or services for

22  which a refund is claimed are used.

23         3.4.  A description of each such item or service and

24  the purpose for which such item or service was acquired.

25         4.5.  Copies of the sales invoices of items or services

26  for which a refund is being claimed.

27         (4)(5)  The right to receive any refund under the

28  provisions of this section is not assignable, except to the

29  executor or administrator, or to the receiver, trustee in

30  bankruptcy, or assignee in an insolvency proceeding, of the

31  person entitled to the refund.

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 1         (5)(6)(a)  Each registered dealer shall, in accordance

 2  with the requirements of the department, keep at his or her

 3  principal place of business in this state or at the location

 4  where the sale is made a complete record or duplicate sales

 5  tickets of all items or services sold by the registered dealer

 6  for which a refund provided in this section may be claimed,

 7  which records shall contain the information required in

 8  paragraph (2)(a) (3)(a).

 9         (b)  Every person applying for to whom a refund permit

10  has been issued under this section shall, in accordance with

11  the requirements of the department, keep at his or her

12  residence or principal place of business in this state a

13  record of each purchase for which a refund is claimed,

14  including the information required in paragraph (2)(a) (3)(a).

15         (c)  The records required to be kept under this

16  subsection shall at all reasonable hours be subject to audit

17  or inspection by the department or by any person duly

18  authorized by it.  Such records shall be preserved and may not

19  be destroyed until 3 years after the date the item to which

20  they relate was sold or purchased.

21         (6)(7)  Agents of the department are authorized to go

22  upon the premises of any refund applicant permitholder, or

23  duly authorized agent thereof, to make an inspection to

24  ascertain any matter connected with the operation of this

25  section or the enforcement hereof. However, no agent may enter

26  the dwelling of any person without the consent of the occupant

27  or authority from a court of competent jurisdiction.

28         (7)(8)  If any taxes are refunded erroneously, the

29  department shall advise the payee by registered mail of the

30  erroneous refund.  If the payee fails to reimburse the state

31  within 15 days after the receipt of the letter, an action may

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 1  be instituted by the department against such payee in the

 2  circuit court, and the department shall recover from the payee

 3  the amount of the erroneous refund plus a penalty of 25

 4  percent.

 5         (8)(9)  A No person may not shall:

 6         (a)  Knowingly make a false or fraudulent statement in

 7  an application for a refund permit or in an application for a

 8  refund of any taxes under this section;

 9         (b)  Fraudulently obtain a refund of such taxes; or

10         (c)  Knowingly aid or assist in making any such false

11  or fraudulent statement or claim.

12         (10)  The refund permit of any person who violates any

13  provision of this section shall be revoked by the department

14  and may not be reissued until 2 years have elapsed from the

15  date of such revocation.  The refund permit of any person who

16  violates any other provision of this chapter may be suspended

17  by the department for any period, in its discretion, not

18  exceeding 6 months.

19         (9)(11)  Refund permits and refund application forms

20  must shall include instructions for dealers and purchasers as

21  to the relevant requirements of this section.

22         Section 8.  Section 212.094, Florida Statutes, is

23  created to read:

24         212.094  Purchaser requests for refunds from dealers.--

25         (1)  If a purchaser seeks a refund of or credit from a

26  dealer for a tax collected under this chapter by that dealer,

27  the purchaser must submit a written request for the refund or

28  credit to the dealer in accordance with this section. The

29  request must contain all the information necessary for the

30  dealer to determine the validity of the purchaser's request.

31  

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 1         (2)  The purchaser may not take any other action

 2  against the dealer with respect to the requested refund or

 3  credit until the dealer has had 60 days following receipt of a

 4  completed request in which to respond.

 5         (3)  This section does not change the law regarding

 6  standing to claim a refund.

 7         Section 9.  Subsection (3) of section 212.17, Florida

 8  Statutes, is amended to read:

 9         212.17  Credits for returned goods, rentals, or

10  admissions; goods acquired for dealer's own use and

11  subsequently resold; additional powers of department.--

12         (3)  A dealer who has paid the tax imposed by this

13  chapter on tangible personal property or services may take a

14  credit or obtain a refund for any tax paid by the dealer on

15  the unpaid balance due on worthless accounts within 12 months

16  following the month in which the bad debt has been charged off

17  for federal income tax purposes. A dealer who has paid the tax

18  imposed by this chapter on tangible personal property or

19  services and who is not required to file federal income tax

20  returns may take a credit or obtain a refund for any tax paid

21  by the dealer on the unpaid balance due on worthless accounts

22  within 12 months following the month in which the bad debt is

23  written off as uncollectible in the dealer's books and records

24  and would be eligible for a bad-debt deduction for federal

25  income tax purposes if the dealer was required to file a

26  federal income tax return.

27         (a)  A dealer that is taking a credit or obtaining a

28  refund on worthless accounts shall base the bad-debt-recovery

29  calculation in accordance with 26 U.S.C. s. 166.

30         (b)  Notwithstanding paragraph (a), the amount

31  calculated pursuant to 26 U.S.C. s. 166 shall be adjusted to

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 1  exclude financing charges or interest; sales or use taxes

 2  charged on the purchase price; uncollectible amounts on

 3  property that remains in the possession of the seller until

 4  the full purchase price is paid; expenses incurred in

 5  attempting to collect any debt; and repossessed property.

 6         (c)  When the amount of bad debt exceeds the amount of

 7  taxable sales for the period during which the bad debt is

 8  written off, a refund claim must be filed, notwithstanding s.

 9  215.26(2), within 3 years after the due date of the return on

10  which the bad debt could first be claimed.

11         (d)  If any accounts so charged off for which a credit

12  or refund has been obtained are thereafter in whole or in part

13  paid to the dealer, the amount so paid shall be included in

14  the first return filed after such collection and the tax paid

15  accordingly.

16         (e)  If filing responsibilities have been assumed by a

17  certified service provider, the certified service provider

18  shall claim, on behalf of the seller, any bad-debt allowance

19  provided by this section. The certified service provider must

20  credit or refund to the seller the full amount of any bad-debt

21  allowance or refund received.

22         (f)  For the purposes of reporting a payment received

23  on a previously claimed bad debt, any payments made on a debt

24  or account are applied first proportionally to the taxable

25  price of the property or service and the sales tax thereon,

26  and secondly to interest, service charges, and any other

27  charges.

28         (g)  In situations in which the books and records of

29  the party claiming the bad-debt allowance support an

30  allocation of the bad debts among states that are members of

31  

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 1  the Streamlined Sales and Use Tax Agreement, the allocation is

 2  permitted among those states.

 3         Section 10.  Section 213.052, Florida Statutes, is

 4  created to read:

 5         213.052  Notice of state rate changes.--

 6         (1)  A sales or use tax rate change imposed under

 7  chapter 212 is effective on January 1, April 1, July 1, or

 8  October 1. The Department of Revenue shall provide notice of

 9  such rate change to all affected sellers 90 days before the

10  effective date of the rate change.

11         (2)  Failure of a seller to receive notice does not

12  relieve the seller of its obligation to collect sales or use

13  tax.

14         Section 11.  Section 213.0521, Florida Statutes, is

15  created to read:

16         213.0521  Effective date of state rate changes.--The

17  effective date for services covering a period starting before

18  and ending after the statutory effective date is as follows:

19         (1)  For a rate increase, the new rate applies to the

20  first billing period starting on or after the effective date.

21         (2)  For a rate decrease, the new rate applies to bills

22  rendered on or after the effective date.

23         Section 12.  Subsection (11) is added to section

24  213.21, Florida Statutes, to read:

25         213.21  Informal conferences; compromises.--

26         (11)  Amnesty shall be provided for uncollected or

27  unpaid sales or use tax to a seller who registers to pay or to

28  collect and remit applicable sales or use tax in accordance

29  with the terms of the Streamlined Sales and Use Tax Agreement

30  authorized under s. 213.256, if the seller was not registered

31  with the Department of Revenue in the 12-month period

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 1  preceding the effective date of participation in the agreement

 2  by this state.

 3         (a)  The amnesty precludes assessment for uncollected

 4  or unpaid sales or use tax, together with penalty or interest

 5  for sales made during the period the seller was not registered

 6  with the Department of Revenue, if registration occurs within

 7  12 months after the effective date of this state's

 8  participation in the agreement.

 9         (b)  The amnesty is not available to a seller with

10  respect to any matter for which the seller received notice of

11  the commencement of an audit if the audit is not yet finally

12  resolved, including any related administrative and judicial

13  processes.

14         (c)  The amnesty is not available for sales or use

15  taxes already paid or remitted to the state or to taxes

16  collected by the seller.

17         (d)  The amnesty is fully effective, absent the

18  seller's fraud or intentional misrepresentation of a material

19  fact, as long as the seller continues registration and

20  continues payment or collection and remittance of applicable

21  sales or use taxes for at least 36 months.

22         (e)  The amnesty is applicable only to sales or use

23  taxes due from a seller in its capacity as a seller and not to

24  sales or use taxes due from a seller in its capacity as a

25  buyer.

26         Section 13.  Subsections (1) and (7) of section

27  213.256, Florida Statutes, are amended, present subsections

28  (8), (9), and (10) of that section are renumbered as

29  subsections (11), (12), and (13), respectively, and new

30  subsections (8), (9), (10), and (14) are added to that

31  section, to read:

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 1         213.256  Simplified Sales and Use Tax Administration

 2  Act.--

 3         (1)  As used in this section and s. 213.2567 this

 4  section, the term:

 5         (a)  "Department" means the Department of Revenue.

 6         (b)  "Agent" means a person appointed by a seller to

 7  represent the seller before the member states.

 8         (c)(b)  "Agreement" means the Streamlined Sales and Use

 9  Tax Agreement as amended and adopted on November 12, 2002

10  January 27, 2001, by the Executive Committee of the National

11  Conference of State Legislatures.

12         (d)(c)  "Certified automated system" means software

13  certified jointly by the states that are signatories to the

14  agreement to calculate the tax imposed by each jurisdiction on

15  a transaction, determine the amount of tax to remit to the

16  appropriate state, and maintain a record of the transaction.

17         (e)(d)  "Certified service provider" means an agent

18  certified under jointly by the states that are signatories to

19  the agreement to perform all of the seller's sales tax

20  functions other than the seller's obligation to remit tax on

21  its own purchases.

22         (f)  "Model 1 seller" means a seller that has selected

23  a certified service provider as its agent to perform all the

24  seller's sales and use tax functions other than the seller's

25  obligation to remit tax on its own purchases.

26         (g)  "Model 2 seller" means a seller that has selected

27  a certified automated system to perform part of its sales and

28  use tax functions, but retains responsibility for remitting

29  the tax.

30         (h)  "Model 3 seller" means a seller that has sales in

31  at least five member states, has total annual sales revenue of

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 1  at least $500 million, has a proprietary system that

 2  calculates the amount of tax due each jurisdiction, and has

 3  entered into a performance agreement with the member states

 4  which establishes a tax performance standard for the seller.

 5  As used in this paragraph, a seller includes an affiliated

 6  group of sellers using the same proprietary system.

 7         (i)(e)  "Person" means an individual, trust, estate,

 8  fiduciary, partnership, limited liability company, limited

 9  liability partnership, corporation, or any other legal entity.

10         (j)  "Registered under this agreement" means

11  registration by a seller with the member states under the

12  central registration system.

13         (k)(f)  "Sales tax" means the tax levied under chapter

14  212.

15         (l)(g)  "Seller" means any person making sales, leases,

16  or rentals of personal property or services.

17         (m)(h)  "State" means any state of the United States

18  and the District of Columbia.

19         (n)(i)  "Use tax" means the tax levied under chapter

20  212.

21         (7)(a)  The agreement authorized by this act binds and

22  inures only to the benefit of this state and the other member

23  states. No person, other than a member state, is an intended

24  beneficiary of the agreement. Any benefit to a person other

25  than a state is established by the laws of this state and of

26  other member states and not by the terms of the agreement.

27         (b)  Consistent with paragraph (a), no person has any

28  cause of action or defense under the agreement or by virtue of

29  this state's approval of the agreement. No person may

30  challenge, in any action brought under any provision of law,

31  any action or inaction by any department, agency, or other

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 1  instrumentality of this state, or of any political subdivision

 2  of this state, on the ground that the action or inaction is

 3  inconsistent with the agreement.

 4         (c)  No law of this state, or the application thereof,

 5  may be declared invalid as to any person or circumstance on

 6  the ground that the provision or application is inconsistent

 7  with the agreement.

 8         (d)  The determinations pertaining to the agreement

 9  which are made by the member states are final when rendered

10  and are not subject to any protest, appeal, or review.

11         (8)  Authority to administer the agreement rests with

12  the governing board comprised of representatives of each

13  member state. This state shall be represented by three

14  delegates, one appointed by the President of the Senate, one

15  appointed by the Speaker of the House of Representatives, and

16  the executive director of the department or his or her

17  designee.

18         (9)  With respect to each member state, the agreement

19  continues in full force and effect until a member state

20  withdraws its membership or is expelled. A member state's

21  withdrawal or expulsion is not effective until the first day

22  of a calendar quarter after a minimum of 60 days' notice. A

23  member state shall submit notice of its intent to withdraw

24  from the agreement to the governing board and the chief

25  executive of each member state's tax agency. The member state

26  shall provide public notice of its intent to withdraw and post

27  its notice of intent to withdraw from the agreement to the

28  governing board and the chief executive of each member state's

29  tax agency. The member state shall provide public notice of

30  its intent to withdraw and post its notice of intent to

31  withdraw on its Internet website. The withdrawal by or

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 1  expulsion of a state does not affect the validity of the

 2  agreement among other member states. A state that withdraws or

 3  is expelled from the agreement remains liable for its share of

 4  any financial or contractual obligations that were incurred by

 5  the governing board before the effective date of that state's

 6  withdrawal or expulsion. The appropriate share of any

 7  financial or contractual obligation shall be determined by the

 8  state and the governing board in good faith based on the

 9  relative benefits received and burdens incurred by the

10  parties.

11         (10)  Sanctions may be imposed upon a member state that

12  is found to be out of compliance with the agreement, which

13  include expulsion or other penalties as determined by the

14  governing board.

15         (14)  Each member state shall annually recertify that

16  it is in compliance with the agreement. Each member state

17  shall make a recertification to the governing board on or

18  before August 1 of each year after the year of the state's

19  entry. In its annual recertification, the state shall include

20  any changes in its statutes, rules, or regulations or other

21  authorities that could affect its compliance with the terms of

22  the agreement. The recertification shall be signed by the

23  executive director of the department. A member state that

24  cannot recertify its compliance with the agreement shall

25  submit a statement of noncompliance to the governing board.

26  The statement of noncompliance must include any action or

27  decision that takes the state out of compliance with the

28  agreement and the steps it will take to return to compliance.

29  Each member state shall post its annual recertification or

30  statement of noncompliance on that state's Internet website.

31  

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 1         Section 14.  Section 213.2567, Florida Statutes, is

 2  created to read:

 3         213.2567  Simplified Sales and Use Tax registration,

 4  certification, liability, and audit.--

 5         (1)  A seller that registers under the agreement agrees

 6  to collect and remit sales and use taxes for all taxable sales

 7  into the member states, including member states joining after

 8  the seller's registration. Withdrawal or revocation of a

 9  member state does not relieve a seller of its responsibility

10  to remit taxes previously or subsequently collected on behalf

11  of the state.

12         (a)  When registering, the seller may select a model 1,

13  model 2, or model 3 method of remittance or other method

14  allowed by state law to remit the taxes collected.

15         (b)  A seller may be registered by an agent. Such an

16  appointment must be in writing and submitted to a member

17  state.

18         (2)(a)  A certified service provider is the agent of a

19  model 1 seller with whom the certified service provider has

20  contracted for the collection and remittance of sales and use

21  taxes. As the model 1 seller's agent, the certified service

22  provider is liable for sales and use tax due each member state

23  on all sales transactions it processes for the model 1 seller,

24  except as set out in paragraph (b).

25         (b)  A model 1 seller is not liable to the state for

26  sales or use tax due on transactions processed by the

27  certified service provider unless the model 1 seller has

28  misrepresented the type of items it sells or has committed

29  fraud. In the absence of probable cause to believe that the

30  model 1 seller has committed fraud or made a material

31  misrepresentation, the model 1 seller is not subject to audit

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 1  on the transactions processed by the certified service

 2  provider. A model 1 seller is subject to audit for

 3  transactions that have not been processed by the certified

 4  service provider. The member states acting jointly may perform

 5  a system check of the model 1 seller and review the model 1

 6  seller's procedures to determine if the certified service

 7  provider's system is functioning properly and to determine the

 8  extent to which the model 1 seller's transactions are being

 9  processed by the certified service provider.

10         (3)  A person that provides a certified automated

11  system is responsible for the proper functioning of that

12  system and is liable to the state for underpayments of tax

13  attributable to errors in the functioning of the certified

14  automated system. A model 2 seller that uses a certified

15  automated system remains responsible and is liable to the

16  state for reporting and remitting tax.

17         (4)  A model 3 seller is liable for the failure of the

18  proprietary system to meet the performance standard.

19         (5)  The governing board may certify a person as a

20  certified service provider if the person meets all of the

21  following requirements:

22         (a)  Uses a certified automated system;

23         (b)  Integrates its certified automated system with the

24  system of a seller for whom the person collects tax so that

25  the tax due on a sale is determined at the time of the sale;

26         (c)  Agrees to remit the taxes it collects at the time

27  and in the manner specified by the member states;

28         (d)  Agrees to file returns on behalf of the sellers

29  for whom it collects tax;

30         (e)  Agrees to protect the privacy of tax information

31  it obtains in accordance with s. 213.053; and

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 1         (f)  Enters into a contract with the member states and

 2  agrees to comply with the terms of the contract.

 3         (6)  The governing board may certify a software program

 4  as a certified automated system if the governing board

 5  determines that the program meets all of the following

 6  requirements:

 7         (a)  Determines the applicable state and local sales

 8  and use tax rate for a transaction in accordance with s.

 9  212.06(3) and (4);

10         (b)  Determines whether or not an item is exempt from

11  tax;

12         (c)  Determines the amount of tax to be remitted for

13  each taxpayer for a reporting period;

14         (d)  Can generate reports and returns as required by

15  the governing board; and

16         (e)  Meets any other requirement set by the governing

17  board.

18         (7)  The governing board may establish one or more

19  sales tax performance standards for model 3 sellers that meet

20  the eligibility criteria set by the governing board and that

21  developed a proprietary system to determine the amount of

22  sales and use tax due on transactions.

23         (8)  Disclosure of information necessary under this

24  section must be made according to a written agreement between

25  the executive director of the department or his or her

26  designee and the certified service provider. The certified

27  service provider is bound by the same requirements of

28  confidentiality as the department. Breach of confidentiality

29  is a misdemeanor of the first degree, punishable as provided

30  in s. 775.082 or s. 775.083.

31  

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 1         Section 15.  Paragraph (c) of subsection (2) and

 2  paragraph (c) of subsection (3) of section 212.055, Florida

 3  Statutes, are amended to read:

 4         212.055  Discretionary sales surtaxes; legislative

 5  intent; authorization and use of proceeds.--It is the

 6  legislative intent that any authorization for imposition of a

 7  discretionary sales surtax shall be published in the Florida

 8  Statutes as a subsection of this section, irrespective of the

 9  duration of the levy.  Each enactment shall specify the types

10  of counties authorized to levy; the rate or rates which may be

11  imposed; the maximum length of time the surtax may be imposed,

12  if any; the procedure which must be followed to secure voter

13  approval, if required; the purpose for which the proceeds may

14  be expended; and such other requirements as the Legislature

15  may provide.  Taxable transactions and administrative

16  procedures shall be as provided in s. 212.054.

17         (2)  LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.--

18         (c)  Pursuant to s. 212.054(5) s. 212.054(4), the

19  proceeds of the surtax levied under this subsection shall be

20  distributed to the county and the municipalities within such

21  county in which the surtax was collected, according to:

22         1.  An interlocal agreement between the county

23  governing authority and the governing bodies of the

24  municipalities representing a majority of the county's

25  municipal population, which agreement may include a school

26  district with the consent of the county governing authority

27  and the governing bodies of the municipalities representing a

28  majority of the county's municipal population; or

29         2.  If there is no interlocal agreement, according to

30  the formula provided in s. 218.62.

31  

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 1  Any change in the distribution formula must take effect on the

 2  first day of any month that begins at least 60 days after

 3  written notification of that change has been made to the

 4  department.

 5         (3)  SMALL COUNTY SURTAX.--

 6         (c)  Pursuant to s. 212.054(5) s. 212.054(4), the

 7  proceeds of the surtax levied under this subsection shall be

 8  distributed to the county and the municipalities within the

 9  county in which the surtax was collected, according to:

10         1.  An interlocal agreement between the county

11  governing authority and the governing bodies of the

12  municipalities representing a majority of the county's

13  municipal population, which agreement may include a school

14  district with the consent of the county governing authority

15  and the governing bodies of the municipalities representing a

16  majority of the county's municipal population; or

17         2.  If there is no interlocal agreement, according to

18  the formula provided in s. 218.62.

19  

20  Any change in the distribution formula shall take effect on

21  the first day of any month that begins at least 60 days after

22  written notification of that change has been made to the

23  department.

24         Section 16.  Subsection (6) of section 212.0596,

25  Florida Statutes, is repealed.

26         Section 17.  It is the intent of the Legislature to

27  further amend chapter 212, Florida Statutes, to make the

28  changes necessary to be in compliance with the provisions of

29  the Streamlined Sales and Use Tax Agreement which take effect

30  on December 31, 2005, and to address the prohibition on

31  multiple state rates in a revenue-neutral manner.

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 1         Section 18.  Emergency rules.--The executive director

 2  of the Department of Revenue is authorized, and all conditions

 3  are deemed met, to adopt emergency rules, under sections

 4  120.536(1) and 120.54(4), Florida Statutes, to implement this

 5  act. Notwithstanding any other law, the emergency rules shall

 6  remain effective for 6 months after the date of adoption and

 7  may be renewed during the pendency of procedures to adopt

 8  rules addressing the subject of the emergency rules.

 9         Section 19.  This act shall take effect January 1,

10  2006.

11  

12            *****************************************

13                          SENATE SUMMARY

14    Revises various provisions of the Streamlined Sales and
      Use Tax Agreement. Deletes provisions relating to the
15    rental or lease of motor vehicles. Provides for
      determining the location of the sale or recharge of
16    prepaid calling arrangements. Provides guidelines for
      determining the situs of certain transactions. Provides
17    general rules for determining the location of
      transactions involving the retail sale of tangible
18    personal property, digital goods, or services and for the
      lease or rental of tangible personal property. Requires
19    certain business purchasers to obtain multiple points of
      use exemption forms. Requires that a purchaser seeking a
20    refund or credit under ch. 212, F.S., to submit a written
      request for the refund or credit. Prescribes additional
21    guidelines and procedures with respect to dealer credits
      for taxes paid on worthless accounts. Provides for
22    amnesty to certain sellers for uncollected or unpaid
      sales and use taxes. Provides that authority to
23    administer the Streamlined Sales and Use Tax Agreement
      rests with a governing board comprised of representatives
24    of member states. Provides for the registration of
      sellers, the certification of a person as a certified
25    service provider, and the certification of a software
      program as a certified automated system by the governing
26    board under the Streamlined Sales and Use Tax Agreement.
      (See bill for details.)
27  

28  

29  

30  

31  

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