| 1 | The Civil Justice Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to state tax funds; amending s. 213.756, |
| 7 | F.S.; establishing a burden of proof for certain refund |
| 8 | claims; establishing a measure of damages for certain |
| 9 | refund claims; specifying an affirmative defense to |
| 10 | certain actions by a purchaser to recover taxes or for a |
| 11 | refund of taxes; providing application; providing |
| 12 | construction; providing severability; providing for |
| 13 | retroactive application; providing an effective date. |
| 14 |
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| 15 | Be It Enacted by the Legislature of the State of Florida: |
| 16 |
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| 17 | Section 1. Section 213.756, Florida Statutes, is amended |
| 18 | to read: |
| 19 | 213.756 Funds collected are state tax funds.-- |
| 20 | (1) Funds collected from a purchaser under the |
| 21 | representation that they are taxes provided for under the state |
| 22 | revenue laws are state funds from the moment of collection and |
| 23 | are not subject to refund absent proof that such funds have been |
| 24 | refunded previously to the purchaser. |
| 25 | (2)(a) In any action by a purchaser against a retailer, |
| 26 | dealer, or vendor to obtain a refund of or to otherwise recover |
| 27 | taxes, fees, or surcharges collected by the retailer, dealer, or |
| 28 | vendor from the purchaser: |
| 29 | 1. The purchaser in such action has the burden of proving |
| 30 | all elements of its claim for a refund by clear and convincing |
| 31 | evidence; |
| 32 | 2. The sole remedy in such action is damages measured by |
| 33 | the difference between what the retailer, dealer, or vendor |
| 34 | collected as a tax, fee, or surcharge and what the retailer, |
| 35 | dealer, or vendor paid to the taxing authority plus any discount |
| 36 | or collection allowance authorized by law and taken by the |
| 37 | retailer, dealer, or vendor; and |
| 38 | 3. It is an affirmative defense to such action when the |
| 39 | retailer, dealer, or vendor remitted the amount collected from |
| 40 | the purchaser to the appropriate taxing authority, less any |
| 41 | discount or collection allowance authorized by law. |
| 42 | (b) This subsection applies to those taxes enumerated in |
| 43 | s. 72.011, excluding chapter 202 and that portion of chapter 203 |
| 44 | collected thereunder, and also applies to taxes imposed under |
| 45 | chapter 205. |
| 46 | (c) This subsection does not change the law regarding |
| 47 | standing to claim a refund. |
| 48 | Section 2. If any provision of this act or the application |
| 49 | thereof to any person or circumstance is held invalid, the |
| 50 | invalidity shall not affect other provisions or applications of |
| 51 | the act which can be given effect without the invalid provision |
| 52 | or application and, to this end, the provisions of this act are |
| 53 | declared severable. |
| 54 | Section 3. This act shall take effect July 1, 2005, and |
| 55 | shall apply retroactively to all actions initiated on or after |
| 56 | such date and, to the maximum extent authorized by law, to all |
| 57 | actions pending as of such date. |