| 1 | The Finance & Tax 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 public school construction sales tax |
| 7 | relief; amending s. 212.08, F.S.; providing an exemption |
| 8 | from the tax on sales, use, and other transactions for |
| 9 | tangible personal property sold to a contractor directly |
| 10 | employed by or as an agent of the United States Government |
| 11 | or state or local government when such property becomes |
| 12 | part of a prekindergarten or elementary school owned by |
| 13 | the governmental entity under specified conditions; |
| 14 | providing duties of governmental entities, contractors, |
| 15 | and sellers relating to documentation and recordkeeping; |
| 16 | providing for application of penalties; providing an |
| 17 | effective date. |
| 18 |
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| 19 | Be It Enacted by the Legislature of the State of Florida: |
| 20 |
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| 21 | Section 1. Subsection (6) of section 212.08, Florida |
| 22 | Statutes, is amended, and subsection (18) is added to that |
| 23 | section, to read: |
| 24 | 212.08 Sales, rental, use, consumption, distribution, and |
| 25 | storage tax; specified exemptions.--The sale at retail, the |
| 26 | rental, the use, the consumption, the distribution, and the |
| 27 | storage to be used or consumed in this state of the following |
| 28 | are hereby specifically exempt from the tax imposed by this |
| 29 | chapter. |
| 30 | (6) EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are also |
| 31 | exempt from the tax imposed by this chapter sales made to the |
| 32 | United States Government, a state, or any county, municipality, |
| 33 | or political subdivision of a state when payment is made |
| 34 | directly to the dealer by the governmental entity. Unless the |
| 35 | conditions specified in subsection (18) are met, this exemption |
| 36 | shall not inure to any transaction otherwise taxable under this |
| 37 | chapter when payment is made by a government employee by any |
| 38 | means, including, but not limited to, cash, check, or credit |
| 39 | card when that employee is subsequently reimbursed by the |
| 40 | governmental entity. This exemption does not include sales of |
| 41 | tangible personal property made to contractors employed either |
| 42 | directly or as agents of any such government or political |
| 43 | subdivision thereof when such tangible personal property goes |
| 44 | into or becomes a part of public works owned by such government |
| 45 | or political subdivision. A determination whether a particular |
| 46 | transaction is properly characterized as an exempt sale to a |
| 47 | government entity or a taxable sale to a contractor shall be |
| 48 | based on the substance of the transaction rather than the form |
| 49 | in which the transaction is cast. The department shall adopt |
| 50 | rules that give special consideration to factors that govern the |
| 51 | status of the tangible personal property before its affixation |
| 52 | to real property. In developing these rules, assumption of the |
| 53 | risk of damage or loss is of paramount consideration in the |
| 54 | determination. This exemption does not include sales, rental, |
| 55 | use, consumption, or storage for use in any political |
| 56 | subdivision or municipality in this state of machines and |
| 57 | equipment and parts and accessories therefor used in the |
| 58 | generation, transmission, or distribution of electrical energy |
| 59 | by systems owned and operated by a political subdivision in this |
| 60 | state for transmission or distribution expansion. Likewise |
| 61 | exempt are charges for services rendered by radio and television |
| 62 | stations, including line charges, talent fees, or license fees |
| 63 | and charges for films, videotapes, and transcriptions used in |
| 64 | producing radio or television broadcasts. The exemption provided |
| 65 | in this subsection does not include sales, rental, use, |
| 66 | consumption, or storage for use in any political subdivision or |
| 67 | municipality in this state of machines and equipment and parts |
| 68 | and accessories therefor used in providing two-way |
| 69 | telecommunications services to the public for hire by the use of |
| 70 | a telecommunications facility, as defined in s. 364.02(15), and |
| 71 | for which a certificate is required under chapter 364, which |
| 72 | facility is owned and operated by any county, municipality, or |
| 73 | other political subdivision of the state. Any immunity of any |
| 74 | political subdivision of the state or other entity of local |
| 75 | government from taxation of the property used to provide |
| 76 | telecommunication services that is taxed as a result of this |
| 77 | section is hereby waived. However, the exemption provided in |
| 78 | this subsection includes transactions taxable under this chapter |
| 79 | which are for use by the operator of a public-use airport, as |
| 80 | defined in s. 332.004, in providing such telecommunications |
| 81 | services for the airport or its tenants, concessionaires, or |
| 82 | licensees, or which are for use by a public hospital for the |
| 83 | provision of such telecommunications services. |
| 84 | (18) EXEMPTIONS; PUBLIC PREKINDERGARTEN AND ELEMENTARY |
| 85 | SCHOOL CONSTRUCTION CONTRACTOR PURCHASES.-- |
| 86 | (a) Sales of tangible personal property made to |
| 87 | contractors employed directly by or as agents of the United |
| 88 | States Government, a state, a county, a municipality, or a |
| 89 | political subdivision of a state for public prekindergarten or |
| 90 | elementary school construction are exempt if all of the |
| 91 | following conditions are met: |
| 92 | 1. At the time of such sale, the governmental entity or |
| 93 | political subdivision holds a current consumer's certificate of |
| 94 | exemption from the department. |
| 95 | 2. The tangible personal property purchased by the |
| 96 | contractor will go into or become part of a public |
| 97 | prekindergarten or elementary school owned by the governmental |
| 98 | entity or political subdivision. Tangible personal property |
| 99 | purchased and used by a contractor in the course of performing a |
| 100 | contract which does not become part of the public |
| 101 | prekindergarten or elementary school is not exempt under this |
| 102 | subsection. |
| 103 | 3. The governmental entity or political subdivision bears |
| 104 | the economic burden of the cost of the tangible personal |
| 105 | property, through direct reimbursement of the cost to the |
| 106 | contractor under the contract or inclusion of the cost in the |
| 107 | contractor's price for performance of the contract. |
| 108 | 4. The governmental entity or political subdivision, |
| 109 | general contractor, or a subcontractor presents to the seller |
| 110 | before or at the time of a purchase: |
| 111 | a. A copy of a current, valid Florida consumer's |
| 112 | certificate of exemption held by the governmental entity or |
| 113 | political subdivision. |
| 114 | b. A signed and dated statement of an officer or |
| 115 | authorized employee of the governmental entity or political |
| 116 | subdivision that identifies a specific public prekindergarten or |
| 117 | elementary school project and names the contractor or |
| 118 | contractors engaged to perform work on the identified project |
| 119 | who have been authorized to make exempt purchases of materials |
| 120 | for the project. |
| 121 | c. A signed and dated statement of the purchasing |
| 122 | contractor certifying that all purchases made by that contractor |
| 123 | and identified at the time of purchase as property that will go |
| 124 | into or become a part of the public prekindergarten or |
| 125 | elementary school project specified in the statement of the |
| 126 | governmental entity or political subdivision will be for |
| 127 | incorporation into that public prekindergarten or elementary |
| 128 | school. |
| 129 |
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| 130 | A seller may rely on a single copy of the governmental entity's |
| 131 | or political subdivision's consumer's certificate of exemption |
| 132 | and a single signed and dated statement from the governmental |
| 133 | entity or political subdivision to make sales to any contractor |
| 134 | named on that statement if the other certification and |
| 135 | recordkeeping requirements of this subsection have also been |
| 136 | satisfied. A seller may rely on a single signed statement of a |
| 137 | purchasing contractor to make sales to that contractor for the |
| 138 | public prekindergarten or elementary school project specified in |
| 139 | that statement if the other certification and recordkeeping |
| 140 | requirements of this subsection have also been satisfied. |
| 141 | 5. The records of the seller contain documentation for |
| 142 | each exempt purchase, as follows: |
| 143 | a. A purchase order from the contractor specifically |
| 144 | identifying, by description and quantity, the tangible personal |
| 145 | property being purchased for incorporation by the contractor |
| 146 | into a specifically named public prekindergarten or elementary |
| 147 | school project; or |
| 148 | b. Electronic or other records of the seller that |
| 149 | establish that the purchased tangible personal property, |
| 150 | identified by description and quantity, was charged by a |
| 151 | contractor who has provided a statement as described in |
| 152 | subparagraph 4. to an account to which only purchases for the |
| 153 | public prekindergarten or elementary school project specified in |
| 154 | that statement are charged. |
| 155 | 6. The statements of the governmental entity or political |
| 156 | subdivision and of the purchasing contractor described in this |
| 157 | paragraph must be dated and contain the following printed or |
| 158 | typed declaration at the end of the statement and immediately |
| 159 | above the signature of the public officer, employee, or |
| 160 | contractor: |
| 161 |
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| 162 | "Under penalties of perjury as provided in s. 92.525, |
| 163 | Florida Statutes, I declare that I have read the |
| 164 | foregoing statement and that the facts stated in it |
| 165 | are true." |
| 166 |
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| 167 | 7. The seller verifies that a purchasing contractor is |
| 168 | named in the statement from the governmental entity or political |
| 169 | subdivision and that the project identified in the statement of |
| 170 | the contractor is the same project as that identified in the |
| 171 | statement of the governmental entity or political subdivision |
| 172 | before the exemption is granted as to any purchase. |
| 173 | (b)1. The seller shall maintain in its records the |
| 174 | certificate, statements, and other records described in |
| 175 | paragraph (a) to document the exempt status of any sale for the |
| 176 | period of time during which the department may conduct an audit |
| 177 | of the seller's books and records. A dealer may, through the |
| 178 | informal protest provided for in s. 213.21 and the rules of the |
| 179 | department, provide the department with evidence of the exempt |
| 180 | status of a sale. A consumer's certificate of exemption executed |
| 181 | by a governmental entity or political subdivision that was |
| 182 | registered with the department at the time of sale, a statement |
| 183 | of the governmental entity or political subdivision as described |
| 184 | in sub-subparagraph (a)4.b. that had been issued and signed |
| 185 | before or on the date of the sale for which exemption was |
| 186 | claimed, and a purchasing contractor's statement as described in |
| 187 | sub-subparagraph (a)4.c. from a contractor that could have |
| 188 | issued such statement at the time of the sale shall be accepted |
| 189 | by the department when submitted during the protest period but |
| 190 | may not be accepted in any proceeding under chapter 120 or any |
| 191 | circuit court action instituted under chapter 72. A purchase |
| 192 | does not qualify for exemption under this subsection if a |
| 193 | contractor made the purchase before the date on which a |
| 194 | governmental entity or political subdivision has issued a signed |
| 195 | and dated statement authorizing that contractor to make exempt |
| 196 | purchases for a specified public prekindergarten or elementary |
| 197 | school project. |
| 198 | 2. A contractor that claims an exemption under this |
| 199 | subsection shall maintain records to establish that the |
| 200 | materials purchased were actually incorporated into the public |
| 201 | prekindergarten or elementary school project described in the |
| 202 | contractor's statement. The contractor shall accrue and remit |
| 203 | use tax on any items purchased as exempt under this subsection |
| 204 | that are not incorporated into the public prekindergarten or |
| 205 | elementary school project, unless such items are transferred to |
| 206 | the governmental entity or political subdivision or returned to |
| 207 | the seller for a credit to the contractor's account. The |
| 208 | contractor shall maintain records to document any such transfers |
| 209 | or returns. |
| 210 | 3. Any person who fraudulently, for the purpose of evading |
| 211 | tax, issues a written statement for use in claiming an exemption |
| 212 | under this subsection for materials that do not satisfy the |
| 213 | requirements for such exemption, in addition to being liable for |
| 214 | the payment of the tax due on such materials, is subject to the |
| 215 | penalties provided in s. 212.085. |
| 216 | Section 2. This act shall take effect January 1, 2007. |