HB 89

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