HB 89

A bill to be entitled
2An act relating to public school construction sales tax
3relief; amending s. 212.08, F.S.; exempting tangible
4personal property sold to certain contractors for
5inclusion in prekindergarten through grade 12 school
6construction; providing documentation and recordkeeping
7requirements; providing penalties; providing an effective
10Be It Enacted by the Legislature of the State of Florida:
12     Section 1.  Subsection (6) of section 212.08, Florida
13Statutes, is amended, and subsection (19) is added to that
14section, to read:
15     212.08  Sales, rental, use, consumption, distribution, and
16storage tax; specified exemptions.--The sale at retail, the
17rental, the use, the consumption, the distribution, and the
18storage to be used or consumed in this state of the following
19are hereby specifically exempt from the tax imposed by this
22exempt from the tax imposed by this chapter sales made to the
23United States Government, a state, or any county, municipality,
24or political subdivision of a state when payment is made
25directly to the dealer by the governmental entity. Unless the
26conditions specified in subsection (19) are met, this exemption
27shall not inure to any transaction otherwise taxable under this
28chapter when payment is made by a government employee by any
29means, including, but not limited to, cash, check, or credit
30card when that employee is subsequently reimbursed by the
31governmental entity. This exemption does not include sales of
32tangible personal property made to contractors employed either
33directly or as agents of any such government or political
34subdivision thereof when such tangible personal property goes
35into or becomes a part of public works owned by such government
36or political subdivision. A determination whether a particular
37transaction is properly characterized as an exempt sale to a
38government entity or a taxable sale to a contractor shall be
39based on the substance of the transaction rather than the form
40in which the transaction is cast. The department shall adopt
41rules that give special consideration to factors that govern the
42status of the tangible personal property before its affixation
43to real property. In developing these rules, assumption of the
44risk of damage or loss is of paramount consideration in the
45determination. This exemption does not include sales, rental,
46use, consumption, or storage for use in any political
47subdivision or municipality in this state of machines and
48equipment and parts and accessories therefor used in the
49generation, transmission, or distribution of electrical energy
50by systems owned and operated by a political subdivision in this
51state for transmission or distribution expansion. Likewise
52exempt are charges for services rendered by radio and television
53stations, including line charges, talent fees, or license fees
54and charges for films, videotapes, and transcriptions used in
55producing radio or television broadcasts. The exemption provided
56in this subsection does not include sales, rental, use,
57consumption, or storage for use in any political subdivision or
58municipality in this state of machines and equipment and parts
59and accessories therefor used in providing two-way
60telecommunications services to the public for hire by the use of
61a telecommunications facility, as defined in s. 364.02(15), and
62for which a certificate is required under chapter 364, which
63facility is owned and operated by any county, municipality, or
64other political subdivision of the state. Any immunity of any
65political subdivision of the state or other entity of local
66government from taxation of the property used to provide
67telecommunication services that is taxed as a result of this
68section is hereby waived. However, the exemption provided in
69this subsection includes transactions taxable under this chapter
70which are for use by the operator of a public-use airport, as
71defined in s. 332.004, in providing such telecommunications
72services for the airport or its tenants, concessionaires, or
73licensees, or which are for use by a public hospital for the
74provision of such telecommunications services.
77     (a)  Sales of tangible personal property made to
78contractors employed directly by or as agents of the United
79States Government, a state, a county, a municipality, or a
80political subdivision of a state for public prekindergarten
81through grade 12 school construction are exempt if all of the
82following conditions are met:
83     1.  At the time of such sale, the governmental entity or
84political subdivision holds a current consumer's certificate of
85exemption from the department.
86     2.  The tangible personal property purchased by the
87contractor will go into or become part of a public
88prekindergarten through grade 12 school owned by the
89governmental entity or political subdivision. Tangible personal
90property purchased and used by a contractor in the course of
91performing a contract which does not become part of the public
92prekindergarten through grade 12 school is not exempt under this
94     3.  The governmental entity or political subdivision bears
95the economic burden of the cost of the tangible personal
96property, through direct reimbursement of the cost to the
97contractor under the contract or inclusion of the cost in the
98contractor's price for performance of the contract.
99     4.  The governmental entity or political subdivision,
100general contractor, or a subcontractor presents to the seller
101before or at the time of a purchase:
102     a.  A copy of a current, valid Florida consumer's
103certificate of exemption held by the governmental entity or
104political subdivision.
105     b.  A signed and dated statement of an officer or
106authorized employee of the governmental entity or political
107subdivision that identifies a specific public prekindergarten
108through grade 12 school project and names the contractor or
109contractors engaged to perform work on the identified project
110who have been authorized to make exempt purchases of materials
111for the project.
112     c.  A signed and dated statement of the purchasing
113contractor certifying that all purchases made by that contractor
114and identified at the time of purchase as property that will go
115into or become a part of the public prekindergarten through
116grade 12 school project specified in the statement of the
117governmental entity or political subdivision will be for
118incorporation into that public prekindergarten through grade 12
121A seller may rely on a single copy of the governmental entity's
122or political subdivision's consumer's certificate of exemption
123and a single signed and dated statement from the governmental
124entity or political subdivision to make sales to any contractor
125named on that statement if the other certification and
126recordkeeping requirements of this subsection have also been
127satisfied. A seller may rely on a single signed statement of a
128purchasing contractor to make sales to that contractor for the
129public prekindergarten through grade 12 school project specified
130in that statement if the other certification and recordkeeping
131requirements of this subsection have also been satisfied.
132     5.  The records of the seller contain documentation for
133each exempt purchase, as follows:
134     a.  A purchase order from the contractor specifically
135identifying, by description and quantity, the tangible personal
136property being purchased for incorporation by the contractor
137into a specifically named public prekindergarten through grade
13812 school project; or
139     b.  Electronic or other records of the seller that
140establish that the purchased tangible personal property,
141identified by description and quantity, was charged by a
142contractor who has provided a statement as described in
143subparagraph 4. to an account to which only purchases for the
144public prekindergarten through grade 12 school project specified
145in that statement are charged.
146     6.  The statements of the governmental entity or political
147subdivision and of the purchasing contractor described in this
148paragraph must be dated and contain the following printed or
149typed declaration at the end of the statement and immediately
150above the signature of the public officer, employee, or
153"Under penalties of perjury as provided in s. 92.525,
154Florida Statutes, I declare that I have read the
155foregoing statement and that the facts stated in it
156are true."
158     7.  The seller verifies that a purchasing contractor is
159named in the statement from the governmental entity or political
160subdivision and that the project identified in the statement of
161the contractor is the same project as that identified in the
162statement of the governmental entity or political subdivision
163before the exemption is granted as to any purchase.
164     (b)1.  The seller shall maintain in its records the
165certificate, statements, and other records described in
166paragraph (a) to document the exempt status of any sale for the
167period of time during which the department may conduct an audit
168of the seller's books and records. A dealer may, through the
169informal protest provided for in s. 213.21 and the rules of the
170department, provide the department with evidence of the exempt
171status of a sale. A consumer's certificate of exemption executed
172by a governmental entity or political subdivision that was
173registered with the department at the time of sale, a statement
174of the governmental entity or political subdivision as described
175in sub-subparagraph (a)4.b. that had been issued and signed
176before or on the date of the sale for which exemption was
177claimed, and a purchasing contractor's statement as described in
178sub-subparagraph (a)4.c. from a contractor that could have
179issued such statement at the time of the sale shall be accepted
180by the department when submitted during the protest period but
181may not be accepted in any proceeding under chapter 120 or any
182circuit court action instituted under chapter 72. A purchase
183does not qualify for exemption under this subsection if a
184contractor made the purchase before the date on which a
185governmental entity or political subdivision has issued a signed
186and dated statement authorizing that contractor to make exempt
187purchases for a specified public prekindergarten through grade
18812 school project.
189     2.  A contractor that claims an exemption under this
190subsection shall maintain records to establish that the
191materials purchased were actually incorporated into the public
192prekindergarten through grade 12 school project described in the
193contractor's statement. The contractor shall accrue and remit
194use tax on any items purchased as exempt under this subsection
195that are not incorporated into the public prekindergarten
196through grade 12 school project, unless such items are
197transferred to the governmental entity or political subdivision
198or returned to the seller for a credit to the contractor's
199account. The contractor shall maintain records to document any
200such transfers or returns.
201     3.  Any person who fraudulently, for the purpose of evading
202tax, issues a written statement for use in claiming an exemption
203under this subsection for materials that do not satisfy the
204requirements for such exemption, in addition to being liable for
205the payment of the tax due on such materials, is subject to the
206penalties provided in s. 212.085.
207     Section 2.  This act shall take effect January 1, 2008.

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