HB 689

1	A bill to be entitled
2	An act relating to public school construction sales tax
3	relief; amending s. 212.08, F.S.; providing an exemption
4	from the tax on sales, use, and other transactions for
5	tangible personal property sold to a contractor directly
6	employed by or as an agent of the United States Government
7	or state or local government when such property becomes
8	part of a prekindergarten or elementary school owned by
9	the governmental entity under specified conditions;
10	providing duties of governmental entities, contractors,
11	and sellers relating to documentation and recordkeeping;
12	providing for application of penalties; providing an
13	effective date.
14
15	Be It Enacted by the Legislature of the State of Florida:
16
17	Section 1.  Subsection (6) of section 212.08, Florida
18	Statutes, is amended, and subsection (18) is added to that
19	section, to read:
20	212.08  Sales, rental, use, consumption, distribution, and
21	storage tax; specified exemptions.--The sale at retail, the
22	rental, the use, the consumption, the distribution, and the
23	storage to be used or consumed in this state of the following
24	are hereby specifically exempt from the tax imposed by this
25	chapter.
26	(6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are also
27	exempt from the tax imposed by this chapter sales made to the
28	United States Government, a state, or any county, municipality,
29	or political subdivision of a state when payment is made
30	directly to the dealer by the governmental entity. Unless the
31	conditions specified in subsection (18) are met, this exemption
32	shall not inure to any transaction otherwise taxable under this
33	chapter when payment is made by a government employee by any
34	means, including, but not limited to, cash, check, or credit
35	card when that employee is subsequently reimbursed by the
36	governmental entity. This exemption does not include sales of
37	tangible personal property made to contractors employed either
38	directly or as agents of any such government or political
39	subdivision thereof when such tangible personal property goes
40	into or becomes a part of public works owned by such government
41	or political subdivision. A determination whether a particular
42	transaction is properly characterized as an exempt sale to a
43	government entity or a taxable sale to a contractor shall be
44	based on the substance of the transaction rather than the form
45	in which the transaction is cast. The department shall adopt
46	rules that give special consideration to factors that govern the
47	status of the tangible personal property before its affixation
48	to real property. In developing these rules, assumption of the
49	risk of damage or loss is of paramount consideration in the
50	determination. This exemption does not include sales, rental,
51	use, consumption, or storage for use in any political
52	subdivision or municipality in this state of machines and
53	equipment and parts and accessories therefor used in the
54	generation, transmission, or distribution of electrical energy
55	by systems owned and operated by a political subdivision in this
56	state for transmission or distribution expansion. Likewise
57	exempt are charges for services rendered by radio and television
58	stations, including line charges, talent fees, or license fees
59	and charges for films, videotapes, and transcriptions used in
60	producing radio or television broadcasts. The exemption provided
61	in this subsection does not include sales, rental, use,
62	consumption, or storage for use in any political subdivision or
63	municipality in this state of machines and equipment and parts
64	and accessories therefor used in providing two-way
65	telecommunications services to the public for hire by the use of
66	a telecommunications facility, as defined in s. 364.02(15), and
67	for which a certificate is required under chapter 364, which
68	facility is owned and operated by any county, municipality, or
69	other political subdivision of the state. Any immunity of any
70	political subdivision of the state or other entity of local
71	government from taxation of the property used to provide
72	telecommunication services that is taxed as a result of this
73	section is hereby waived. However, the exemption provided in
74	this subsection includes transactions taxable under this chapter
75	which are for use by the operator of a public-use airport, as
76	defined in s. 332.004, in providing such telecommunications
77	services for the airport or its tenants, concessionaires, or
78	licensees, or which are for use by a public hospital for the
79	provision of such telecommunications services.
80	(18)  EXEMPTIONS; PUBLIC PREKINDERGARTEN AND ELEMENTARY
81	SCHOOL CONSTRUCTION CONTRACTOR PURCHASES.--
82	(a)  Sales of tangible personal property made to
83	contractors employed directly by or as agents of the United
84	States Government, a state, a county, a municipality, or a
85	political subdivision of a state for public prekindergarten or
86	elementary school construction are exempt if all of the
87	following conditions are met:
88	1.  At the time of such sale, the governmental entity or
89	political subdivision holds a current consumer's certificate of
90	exemption from the department.
91	2.  The tangible personal property purchased by the
92	contractor will go into or become part of a public
93	prekindergarten or elementary school owned by the governmental
94	entity or political subdivision. Tangible personal property
95	purchased and used by a contractor in the course of performing a
96	contract which does not become part of the public
97	prekindergarten or elementary school is not exempt under this
98	subsection.
99	3.  The governmental entity or political subdivision bears
100	the economic burden of the cost of the tangible personal
101	property, through direct reimbursement of the cost to the
102	contractor under the contract or inclusion of the cost in the
103	contractor's price for performance of the contract.
104	4.  The governmental entity or political subdivision,
105	general contractor, or a subcontractor presents to the seller
106	before or at the time of a purchase:
107	a.  A copy of a current, valid Florida consumer's
108	certificate of exemption held by the governmental entity or
109	political subdivision.
110	b.  A signed and dated statement of an officer or
111	authorized employee of the governmental entity or political
112	subdivision that identifies a specific public prekindergarten or
113	elementary school project and names the contractor or
114	contractors engaged to perform work on the identified project
115	who have been authorized to make exempt purchases of materials
116	for the project.
117	c.  A signed and dated statement of the purchasing
118	contractor certifying that all purchases made by that contractor
119	and identified at the time of purchase as property that will go
120	into or become a part of the public prekindergarten or
121	elementary school project specified in the statement of the
122	governmental entity or political subdivision will be for
123	incorporation into that public prekindergarten or elementary
124	school.
125
126	A seller may rely on a single copy of the governmental entity's
127	or political subdivision's consumer's certificate of exemption
128	and a single signed and dated statement from the governmental
129	entity or political subdivision to make sales to any contractor
130	named on that statement if the other certification and
131	recordkeeping requirements of this subsection have also been
132	satisfied. A seller may rely on a single signed statement of a
133	purchasing contractor to make sales to that contractor for the
134	public prekindergarten or elementary school project specified in
135	that statement if the other certification and recordkeeping
136	requirements of this subsection have also been satisfied.
137	5.  The records of the seller contain documentation for
138	each exempt purchase, as follows:
139	a.  A purchase order from the contractor specifically
140	identifying, by description and quantity, the tangible personal
141	property being purchased for incorporation by the contractor
142	into a specifically named public prekindergarten or elementary
143	school project; or
144	b.  Electronic or other records of the seller that
145	establish that the purchased tangible personal property,
146	identified by description and quantity, was charged by a
147	contractor who has provided a statement as described in
148	subparagraph 4. to an account to which only purchases for the
149	public prekindergarten or elementary school project specified in
150	that statement are charged.
151	6.  The statements of the governmental entity or political
152	subdivision and of the purchasing contractor described in this
153	paragraph must be dated and contain the following printed or
154	typed declaration at the end of the statement and immediately
155	above the signature of the public officer, employee, or
156	contractor:
157
158	"Under penalties of perjury as provided in s. 92.525,
159	Florida Statutes, I declare that I have read the
160	foregoing statement and that the facts stated in it
161	are true."
162
163	7.  The seller verifies that a purchasing contractor is
164	named in the statement from the governmental entity or political
165	subdivision and that the project identified in the statement of
166	the contractor is the same project as that identified in the
167	statement of the governmental entity or political subdivision
168	before the exemption is granted as to any purchase.
169	(b)1.  The seller shall maintain in its records the
170	certificate, statements, and other records described in
171	paragraph (a) to document the exempt status of any sale for the
172	period of time during which the department may conduct an audit
173	of the seller's books and records. A dealer may, through the
174	informal protest provided for in s. 213.21 and the rules of the
175	department, provide the department with evidence of the exempt
176	status of a sale. A consumer's certificate of exemption executed
177	by a governmental entity or political subdivision that was
178	registered with the department at the time of sale, a statement
179	of the governmental entity or political subdivision as described
180	in sub-subparagraph (a)4.b. that had been issued and signed
181	before or on the date of the sale for which exemption was
182	claimed, and a purchasing contractor's statement as described in
183	sub-subparagraph (a)4.c. from a contractor that could have
184	issued such statement at the time of the sale shall be accepted
185	by the department when submitted during the protest period but
186	may not be accepted in any proceeding under chapter 120 or any
187	circuit court action instituted under chapter 72. A purchase
188	does not qualify for exemption under this subsection if a
189	contractor made the purchase before the date on which a
190	governmental entity or political subdivision has issued a signed
191	and dated statement authorizing that contractor to make exempt
192	purchases for a specified public prekindergarten or elementary
193	school project.
194	2.  A contractor that claims an exemption under this
195	subsection shall maintain records to establish that the
196	materials purchased were actually incorporated into the public
197	prekindergarten or elementary school project described in the
198	contractor's statement. The contractor shall accrue and remit
199	use tax on any items purchased as exempt under this subsection
200	that are not incorporated into the public prekindergarten or
201	elementary school project, unless such items are transferred to
202	the governmental entity or political subdivision or returned to
203	the seller for a credit to the contractor's account. The
204	contractor shall maintain records to document any such transfers
205	or returns.
206	3.  Any person who fraudulently, for the purpose of evading
207	tax, issues a written statement for use in claiming an exemption
208	under this subsection for materials that do not satisfy the
209	requirements for such exemption, in addition to being liable for
210	the payment of the tax due on such materials, is subject to the
211	penalties provided in s. 212.085.
212	Section 2.  This act shall take effect upon becoming a law.

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