HB 1261

1	A bill to be entitled
2	An act relating to tax administration; amending s. 72.011,
3	F.S.; revising criteria for venue of tax matter actions in
4	circuit courts; amending s. 194.011, F.S.; providing for
5	admissibility and consideration of certain evidence;
6	amending s. 194.181, F.S.; revising criteria for
7	plaintiffs in a tax suit; amending s. 194.301, F.S.;
8	revising criteria for a presumption of correctness of a
9	property appraiser's assessment of ad valorem tax value;
10	amending s. 196.196, F.S.; providing legislative intent
11	relating to certain property owned by certain limited
12	liability companies; amending s. 198.13, F.S.; providing
13	additional criteria for filing returns in connection with
14	certain estates; providing for nonapplication of certain
15	provisions to certain estates; amending s. 212.07, F.S.;
16	providing additional circumstances for taxpayer provision
17	of certain evidence to the Department of Revenue; amending
18	s. 213.015, F.S.; revising provisions specifying taxpayer
19	rights; authorizing the department to adopt rules;
20	providing additional rights; amending s. 213.255, F.S.;
21	revising requirements, procedures, and criteria for
22	payment of interest; amending s. 213.756, F.S.; revising
23	provisions and providing additional criteria relating to
24	refunds of state taxes; amending s. 215.26, F.S.;
25	authorizing dealers or purchasers to apply to the
26	department for a refund of certain taxes; providing an
27	effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1.  Subsection (4) of section 72.011, Florida
32	Statutes, is amended to read:
33	72.011  Jurisdiction of circuit courts in specific tax
34	matters; administrative hearings and appeals; time for
35	commencing action; parties; deposits.--
36	(4)(a)  Except as provided in paragraph (b), an action
37	initiated in circuit court pursuant to subsection (1) shall be
38	filed in the Second Judicial Circuit Court in and for Leon
39	County or in the circuit court in the county where the taxpayer
40	resides or has an office, store, or other fixed place of
41	business, maintains its principal commercial domicile in this
42	state, or, in the ordinary course of business, regularly
43	maintains its books and records in this state.
44	(b)  Venue in an action initiated in circuit court pursuant
45	to subsection (1) by a taxpayer that is not a resident of this
46	state or does not have an office, store, or other fixed place of
47	business or that does not maintain a commercial domicile in this
48	state shall be in Leon County. Venue in an action contesting the
49	legality of an assessment or refund denial arising under chapter
50	198 shall be in the circuit court having jurisdiction over the
51	administration of the estate.
52	Section 2.  Paragraph (c) is added to subsection (4) of
53	section 194.011, Florida Statutes, to read:
54	194.011  Assessment notice; objections to assessments.--
55	(4)
56	(c)  Any evidence produced pursuant to this subsection
57	shall be admissible and must be considered by the special
58	magistrate and by the board whether or not such evidence was
59	previously produced at the request of the petitioner or property
60	appraiser.
61	Section 3.  Subsection (1) of section 194.181, Florida
62	Statutes, is amended to read:
63	194.181  Parties to a tax suit.--
64	(1)  The plaintiff in any tax suit shall be:
65	(a)  The taxpayer or other person contesting the assessment
66	of any tax, the payment of which he or she is responsible for
67	under a statute or a person who is responsible for the entire
68	tax payment pursuant to a contract and has the written consent
69	of the property owner, or the condominium association,
70	cooperative association, or homeowners' association as defined
71	in s. 723.075 which operates the units subject to the
72	assessment; or
73	(b)  The property appraiser pursuant to s. 194.036.
74	Section 4.  Section 194.301, Florida Statutes, is amended
75	to read:
76	194.301  Presumption of correctness.--In any administrative
77	or judicial action in which a taxpayer challenges an ad valorem
78	tax assessment of value, the property appraiser's assessment
79	shall be presumed correct. This presumption of correctness is
80	lost if the taxpayer shows by a preponderance of the evidence
81	that either the property appraiser has failed to comply with
82	uniform standards of professional appraisal practice in his or
83	her consideration of consider properly the criteria in s.
84	193.011 or if the property appraiser's assessment is arbitrarily
85	based on appraisal practices which are different from the
86	appraisal practices generally applied by the property appraiser
87	to comparable property within the same class and within the same
88	county. If the presumption of correctness is lost, the property
89	appraiser taxpayer shall have the burden of proving by a
90	preponderance of the evidence that the appraiser's assessment is
91	not in excess of just value. If the presumption of correctness
92	is retained, the taxpayer shall have the burden of proving by a
93	preponderance of the clear and convincing evidence that the
94	appraiser's assessment is in excess of just value. In no case
95	shall the taxpayer have the burden of proving that the property
96	appraiser's assessment is not supported by any reasonable
97	hypothesis of a legal assessment. If the property appraiser's
98	assessment is determined to be erroneous, the Value Adjustment
99	Board or the court can establish the assessment if there exists
100	competent, substantial evidence in the record, which
101	cumulatively meets the requirements of s. 193.011. If the record
102	lacks competent, substantial evidence meeting the just value
103	criteria of s. 193.011, the matter shall be remanded to the
104	property appraiser with appropriate directions from the Value
105	Adjustment Board or the court.
106	Section 5.  Subsection (4) is added to section 196.196,
107	Florida Statutes, to read:
108	196.196  Determining whether property is entitled to
109	charitable, religious, scientific, or literary exemption.--
110	(4)  For purposes of the exemption provided in this section
111	for property used predominantly for charitable, religious,
112	scientific, or literary purposes, the Legislature intends that
113	any property owned by a limited liability company that is
114	disregarded as an entity for federal income tax purposes
115	pursuant to Treasury Regulation 301.7701-3(b)(1)(ii) shall be
116	treated as owned by its sole member.
117	Section 6.  Subsection (4) is added to section 198.13,
118	Florida Statutes, to read:
119	198.13  Tax return to be made in certain cases; certificate
120	of nonliability.--
121	(4)  Notwithstanding any other provisions of this section,
122	if a state death tax credit or a state generation-skipping
123	transfer tax credit is not allowable pursuant to the Internal
124	Revenue Code of 1986, as amended, as of the decedent's death,
125	the following provisions shall apply:
126	(a)  If a state death tax credit is not allowable pursuant
127	to the Internal Revenue Code of 1986, as amended, as of the
128	decedent's death, the personal representative of an estate shall
129	not be required to file a return pursuant to subsection (1) in
130	connection with such estate.
131	(b)  If a state generation-skipping transfer tax credit is
132	not allowable pursuant to the Internal Revenue Code of 1986, as
133	amended, as of the decedent's death, the person who would
134	otherwise be required to file a return pursuant to subsection
135	(3) shall not be required to file such a return in connection
136	with such estate.
137
138	Notwithstanding paragraphs (a) and (b), this subsection shall
139	not apply to estates of decedents dying after December 31, 2010.
140	Section 7.  Paragraph (b) of subsection (1) of section
141	212.07, Florida Statutes, is amended to read:
142	212.07  Sales, storage, use tax; tax added to purchase
143	price; dealer not to absorb; liability of purchasers who cannot
144	prove payment of the tax; penalties; general exemptions.--
145	(1)
146	(b)  A resale must be in strict compliance with s. 212.18
147	and the rules and regulations, and any dealer who makes a sale
148	for resale which is not in strict compliance with s. 212.18 and
149	the rules and regulations shall himself or herself be liable for
150	and pay the tax. Any dealer who makes a sale for resale shall
151	document the exempt nature of the transaction, as established by
152	rules promulgated by the department, by retaining a copy of the
153	purchaser's resale certificate. In lieu of maintaining a copy of
154	the certificate, a dealer may document, prior to the time of
155	sale, an authorization number provided telephonically or
156	electronically by the department, or by such other means
157	established by rule of the department. The dealer may rely on a
158	resale certificate issued pursuant to s. 212.18(3)(c), valid at
159	the time of receipt from the purchaser, without seeking annual
160	verification of the resale certificate if the dealer makes
161	recurring sales to a purchaser in the normal course of business
162	on a continual basis. For purposes of this paragraph, "recurring
163	sales to a purchaser in the normal course of business" refers to
164	a sale in which the dealer extends credit to the purchaser and
165	records the debt as an account receivable, or in which the
166	dealer sells to a purchaser who has an established cash or
167	C.O.D. account, similar to an open credit account. For purposes
168	of this paragraph, purchases are made from a selling dealer on a
169	continual basis if the selling dealer makes, in the normal
170	course of business, sales to the purchaser no less frequently
171	than once in every 12-month period. A dealer may, through the
172	informal protest provided for in s. 213.21 or in any proceeding
173	under chapter 120 or circuit court action instituted under
174	chapter 72 and the rules of the Department of Revenue, provide
175	the department with evidence of the exempt status of a sale.
176	Consumer certificates of exemption executed by those exempt
177	entities that were registered with the department at the time of
178	sale, resale certificates provided by purchasers who were active
179	dealers at the time of sale, and verification by the department
180	of a purchaser's active dealer status at the time of sale in
181	lieu of a resale certificate shall be accepted by the
182	department, administrative law judge, or circuit court when
183	submitted during the protest period, but may not be accepted in
184	any proceeding under chapter 120, or any circuit court action
185	instituted under chapter 72.
186	Section 8.  Section 213.015, Florida Statutes, is amended
187	to read:
188	213.015  Taxpayer rights.--There is created a Florida
189	Taxpayer's Bill of Rights to guarantee that the rights, privacy,
190	and property of Florida taxpayers are adequately safeguarded and
191	protected during tax assessment, collection, and enforcement
192	processes administered under the revenue laws of this state. The
193	Taxpayer's Bill of Rights compiles, in one document, brief but
194	comprehensive statements which explain, in simple, nontechnical
195	terms, the rights and obligations of the Department of Revenue
196	and taxpayers. Section 192.0105 provides additional rights
197	afforded to payors of property taxes and assessments. The
198	Department of Revenue shall adopt any rules necessary to
199	implement the rights specified in this section, including The
200	rights afforded taxpayers to ensure that their privacy and
201	property are safeguarded and protected during tax assessment and
202	collection are available only insofar as they are implemented in
203	other parts of the Florida Statutes or rules of the Department
204	of Revenue. The rights so guaranteed Florida taxpayers in the
205	Florida Statutes and the departmental rules are:
206	(1)  The right to available information and prompt,
207	accurate responses to questions and requests for tax assistance.
208	(2)  The right to request assistance from a taxpayers'
209	rights advocate of the department, who shall be responsible for
210	facilitating the resolution of taxpayer complaints and problems
211	not resolved through the normal administrative channels within
212	the department, including any taxpayer complaints regarding
213	unsatisfactory treatment by department employees. The taxpayers'
214	rights advocate may issue a stay order if a taxpayer has
215	suffered or is about to suffer irreparable loss as a result of
216	an action by the department (see ss. 20.21(3) and 213.018).
217	(3)  The right to be represented or advised by counsel or
218	other qualified representatives at any time in administrative
219	interactions with the department, the right to procedural
220	safeguards with respect to recording of interviews during tax
221	determination or collection processes conducted by the
222	department, the right to be treated in a professional manner by
223	department personnel, and the right to have audits, inspections
224	of records, and interviews conducted at a reasonable time and
225	place except in criminal and internal investigations (see ss.
226	198.06, 199.218, 201.11(1), 203.02, 206.14, 211.125(3),
227	211.33(3), 212.0305(3), 212.12(5)(a), (6)(a), and (13),
228	212.13(5), 213.05, 213.21(1)(a) and (c), and 213.34).
229	(4)  The right to freedom from penalty attributable to any
230	taxes administered by the Department of Revenue; freedom from
231	payment of uncollected sales, use, motor or diesel fuel, or
232	other transaction-based excise taxes administered by the
233	Department of Revenue; and to abatement of interest attributable
234	to any taxes administered by the Department of Revenue, when the
235	taxpayer reasonably relies upon binding written advice furnished
236	to the taxpayer by the department through authorized
237	representatives in response to the taxpayer's specific written
238	request which provided adequate and accurate information (see
239	ss. 120.565 and 213.22).
240	(5)  The right to obtain simple, nontechnical statements
241	which explain the reason for audit selection and the procedures,
242	remedies, and rights available during audit, appeals, and
243	collection proceedings, including, but not limited to, the
244	rights pursuant to this Taxpayer's Bill of Rights and the right
245	to be provided with a narrative description which explains the
246	basis of audit changes, proposed assessments, assessments, and
247	denials of refunds; identifies any amount of tax, interest, or
248	penalty due; and states the consequences of the taxpayer's
249	failure to comply with the notice.
250	(6)  The right to be informed of impending collection
251	actions which require sale or seizure of property or freezing of
252	assets, except jeopardy assessments, and the right to at least
253	30 days' notice in which to pay the liability or seek further
254	review (see ss. 198.20, 199.262, 201.16, 206.075, 206.24,
255	211.125(5), 212.03(5), 212.0305(3)(j), 212.04(7), 212.14(1),
256	213.73(3), 213.731, and 220.739).
257	(7)  The right to have all other collection actions
258	attempted before a jeopardy assessment unless delay will
259	endanger collection and, after a jeopardy assessment, the right
260	to have an immediate review of the jeopardy assessment (see ss.
261	212.15, 213.73(3), 213.732, and 220.719(2)).
262	(8)  The right to seek review, through formal or informal
263	proceedings, of any adverse decisions relating to determinations
264	in the audit or collections processes and the right to seek a
265	reasonable administrative stay of enforcement actions while the
266	taxpayer pursues other administrative remedies available under
267	Florida law (see ss. 120.80(14)(b), 213.21(1), 220.717, and
268	220.719(2)).
269	(9)  The right to have the taxpayer's tax information kept
270	confidential unless otherwise specified by law (see s. 213.053).
271	(10)  The right to procedures for retirement of tax
272	obligations by installment payment agreements which recognize
273	both the taxpayer's financial condition and the best interests
274	of the state, provided that the taxpayer gives accurate, current
275	information and meets all other tax obligations on schedule (see
276	s. 213.21(4)).
277	(11)  The right to procedures for requesting cancellation,
278	release, or modification of liens filed by the department and
279	for requesting that any lien which is filed in error be so noted
280	on the lien cancellation filed by the department, in public
281	notice, and in notice to any credit agency at the taxpayer's
282	request (see ss. 198.22, 199.262, 212.15(4), 213.733, and
283	220.819).
284	(12)  The right to procedures which assure that the
285	individual employees of the department are not paid, evaluated,
286	or promoted on the basis of the amount of assessments or
287	collections from taxpayers (see s. 213.30(2)).
288	(13)  The right to an action at law within the limitations
289	of s. 768.28, relating to sovereign immunity, to recover damages
290	against the state or the Department of Revenue for injury caused
291	by the wrongful or negligent act or omission of a department
292	officer or employee (see s. 768.28).
293	(14)  The right of the taxpayer or the department, as the
294	prevailing party in a judicial or administrative action brought
295	or maintained without the support of justiciable issues of fact
296	or law, to recover all costs of the administrative or judicial
297	action, including reasonable attorney's fees, and of the
298	department and taxpayer to settle such claims through
299	negotiations (see ss. 57.105 and 57.111).
300	(15)  The right to have the department begin and complete
301	its audits in a timely and expeditious manner after notification
302	of intent to audit (see s. 95.091).
303	(16)  The right to have the department actively identify
304	and review multistate proposals that offer more efficient and
305	effective methods for administering the revenue sources of this
306	state (see s. 213.256).
307	(17)  The right to have the department actively investigate
308	and, where appropriate, implement automated or electronic
309	business methods that enable the department to more efficiently
310	and effectively administer the revenue sources of this state at
311	less cost and effort for taxpayers.
312	(18)  The right to waiver of interest that accrues as the
313	result of errors or delays caused by a department employee (see
314	s. 213.21(3)).
315	(19)  The right to participate in free educational
316	activities that help the taxpayer successfully comply with the
317	revenue laws of this state.
318	(20)  The right to pay a reasonable fine or percentage of
319	tax, whichever is less, to reinstate an exemption from any tax
320	which a taxpayer would have been entitled to receive but which
321	was lost because the taxpayer failed to properly register as a
322	tax dealer in this state or obtain the necessary certificates
323	entitling the taxpayer to the exemption (see s. 212.07(9)).
324	(21)  The right to fair and consistent application of the
325	tax laws of this state by the Department of Revenue.
326	(22)  The right to have the Department of Revenue refrain
327	from collecting more taxes than are lawfully due and, as a
328	fundamental concomitant of such right, to have the department,
329	in conducting audits, look for and identify any overpayments
330	made by the taxpayer.
331	(23)  The right to a prompt refund, directly from the
332	department, of taxes paid to a dealer on the purported authority
333	of chapter 202 or 212 when such taxes were not due, were paid in
334	error, or constituted an overpayment. No taxpayer shall be
335	required, in connection with such refund, to provide records or
336	documentation that are in the possession or control of the
337	dealer to whom the taxpayer paid such taxes, and no refund shall
338	be denied to the taxpayer on the absence of such dealer records
339	or documentation. Proof that the taxes were charged and
340	collected by the dealer shall be sufficient. The Department of
341	Revenue shall look solely to the dealer, as the state's tax
342	collection agent, for any taxes, interest, or penalties
343	attributable to the dealer's failure to remit taxes collected
344	from the taxpayer.
345	(24)  The right to have the Department of Revenue maintain
346	and make available for public use an electronic database of the
347	final judgments or partial final judgments in all litigation
348	pursuant to chapters 72 and 194. Such database shall allow users
349	to research and retrieve the full texts of such judgments by
350	devising an ad hoc indexing system employing any logical search
351	terms in common usage that are composed by the user and that are
352	contained in such judgments or by descriptive information about
353	a judgment which may not be specifically contained in a
354	judgment.
355	Section 9.  Subsections (2), (3), (4), (5), (7), (9), and
356	(11) of section 213.255, Florida Statutes, are amended to read:
357	213.255  Interest.--Interest shall be paid on overpayments
358	of taxes, payment of taxes not due, or taxes paid in error,
359	subject to the following conditions:
360	(2)  A refund application shall not be filed on a permitted
361	form and shall contain processed until it is determined
362	complete. A refund application is complete if it is filed on a
363	permitted form and contains:
364	(a)  The taxpayer's name, address, identifying number, and
365	signature.
366	(b)  Sufficient information, whether on the application or
367	attachments, to permit mathematical verification of the amount
368	of the refund.
369	(b)(c)  The amount claimed.
370	(c)(d)  The specific grounds upon which the refund is
371	claimed.
372	(d)(e)  The taxable years or periods involved.
373	(3)  Within 30 days after receipt of the refund
374	application, the department shall examine the application and
375	notify the applicant of any records or documentation needed to
376	substantiate the refund claimed apparent errors or omissions and
377	request any additional information the department is permitted
378	by law to require. An application shall be considered complete
379	upon receipt of all requested information and correction of any
380	error or omission for which the applicant was timely notified,
381	or when the time for such notification has expired, whichever is
382	later.
383	(4)  Interest shall accrue from the date the refund
384	application is filed, but no interest shall be allowed if the
385	refund is paid within 90 days after the date the refund
386	application is filed not commence until 90 days after a complete
387	refund application has been filed and the amount of overpayment
388	has not been refunded to the taxpayer or applied as a credit to
389	the taxpayer's account. However, if there is a prohibition
390	against refunding a tax overpayment before the first day of the
391	state fiscal year, interest on the tax overpayment shall not
392	commence until August 1 of the year the tax was due. If the
393	department and the taxpayer mutually agree that an audit or
394	verification is necessary in order to determine the taxpayer's
395	entitlement to the refund, interest shall not commence until the
396	audit or verification of the claim is final.
397	(5)  If a tax is adjudicated unconstitutional and refunds
398	are ordered by the court, interest shall accrue from the date
399	the taxpayer filed the refund application with the department
400	or, in the case of a taxpayer who files a lawsuit seeking a tax
401	refund and is not required to file a refund application with the
402	department, from the date such taxpayer filed a claim with the
403	court not commence on complete applications until 90 days after
404	the adjudication becomes final and unappealable or 90 days after
405	a complete application has been filed, whichever is later.
406	(7)  If the department intends to pay a refund claim prior
407	to completion of an audit, the department may condition its
408	payment of the refund claim upon the person filing a cash bond
409	or surety bond in the amount of the refund claimed or making
410	such other security arrangements satisfactory to protect the
411	state's interests. The department may impose this condition only
412	when it has reasonable cause to believe that it could not
413	recover the amount of any refund paid in error from the person
414	claiming the refund. The cash or surety bond shall be endorsed
415	by a surety company authorized to do business in this state and
416	shall be conditioned upon payment in full of the amount of any
417	refund paid in error for any reason. The department shall
418	provide a written notice of its determination that a cash or
419	surety bond is required as a condition of payment prior to
420	audit, in which event interest shall not commence until the
421	person filing the claim satisfies this requirement. Such bond
422	shall remain in place while the department retains a right
423	pursuant to s. 95.091(3) to audit the refund claim. Upon
424	completion of an audit of the claim, the department shall agree
425	to a reduction in the bond amount equal to the portion of the
426	refund claim approved by the department.
427	(9)  In the event that the department pays a refund claim
428	that is later determined to have been paid in error, the person
429	to whom the refund was paid shall be assessed interest on the
430	amount of the erroneous refund payment, commencing with the date
431	of the erroneous payment and continuing until the erroneous
432	payment amount is repaid to the department. In such case, the
433	rate of interest assessed shall be 4 percentage points less than
434	the interest rate established pursuant to s. 213.235. Unless If
435	the department determines that the erroneous refund claim was
436	not due to fraud, no penalty shall be assessed on reasonable
437	cause, there shall be added a penalty in the amount of 10
438	percent of the erroneously refunded tax. If the department
439	determines that the erroneous refund claim was due to fraud,
440	there shall be added a penalty in the amount of 100 percent of
441	the erroneously refunded tax.
442	(11)  The department is authorized to adopt such rules, not
443	inconsistent with the provisions of this section, as are
444	necessary for the implementation of this section including, but
445	not limited to, rules establishing the information necessary for
446	verifying a complete refund application, the procedures for
447	denying an incomplete application, and the standards and
448	guidelines to be applied in determining when to require a bond
449	under the provisions of subsection (7).
450	Section 10.  Subsection (1) of section 213.756, Florida
451	Statutes, is amended to read:
452	213.756  Funds collected are state tax funds.--
453	(1)  Funds collected from a purchaser under the
454	representation that they are taxes provided for under the state
455	revenue laws are state funds from the moment of collection and
456	are not subject to refund absent proof that such funds have been
457	refunded previously to the purchaser or that the funds will be
458	promptly refunded to the purchaser following payment of the
459	refund by the taxing authority. Nothing in this section shall
460	require a purchaser to seek a refund of amounts collected from
461	the purchaser as taxes from the person who collected such
462	amounts. In such instances, the purchaser shall be entitled to
463	seek a refund directly from the taxing authority on whose behalf
464	the funds were collected.
465	Section 11.  Subsection (1) of section 215.26, Florida
466	Statutes, is amended to read:
467	215.26  Repayment of funds paid into State Treasury through
468	error.--
469	(1)  The Chief Financial Officer may refund to the person
470	who paid same, or his or her heirs, personal representatives, or
471	assigns, any moneys paid into the State Treasury which
472	constitute:
473	(a)  An overpayment of any tax, license, or account due;
474	(b)  A payment where no tax, license, or account is due;
475	and
476	(c)  Any payment made into the State Treasury in error;
477
478	and if any such payment has been credited to an appropriation,
479	such appropriation shall at the time of making any such refund,
480	be charged therewith. There are appropriated from the proper
481	respective funds from time to time such sums as may be necessary
482	for such refunds. In the case of taxes collected under the
483	authority of chapter 202 or 212, the dealer or the purchaser
484	from whom the taxes were collected may apply to the Department
485	of Revenue for a refund.
486	Section 12.  This act shall take effect July 1, 2007.

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