Senate Bill sb0056
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Florida Senate - 2005 SB 56
By Senator Campbell
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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:
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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.
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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.
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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.
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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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