Florida Senate - 2008 (Reformatted) SB 962

By Senator Geller

31-02574-08 2008962__

A bill to be entitled

An act relating to the Streamlined Sales and Use Tax

Agreement; amending s. 212.02, F.S.; revising definitions

for the purposes of sales and use taxes; defining the

terms "agent," "seller," "certified service provider,"

"direct mail," "prewritten computer software," and

"delivery charges"; providing applicability; amending ss.

212.0306 and 212.04, F.S.; deleting references to

brackets; amending s. 212.05, F.S.; deleting provisions

relating to the rental or lease of motor vehicles;

revising the determination of the location of the sale or

recharge of prepaid calling arrangements; deleting a

reference to brackets; amending s. 212.0506, F.S.;

deleting a reference to brackets; conforming a cross-

reference; amending s. 212.054, F.S.; providing the time

for applying changes in local option tax rates; providing

guidelines for determining the situs of certain

transactions; providing for notice of a change in the rate

of a local option sales tax; providing for applicability

of s. 202.22(2), F.S., relating to determination of local

tax situs, for the purpose of providing and maintaining a

database of sales and use tax rates for local

jurisdictions; amending s. 212.06, F.S.; providing for

determining the location of transactions involving the

retail sale of tangible personal property, digital goods,

or services and for the lease or rental of tangible

personal property; requiring certain business purchasers

to obtain multiple-points-of-use exemption forms;

providing for use of such forms; requiring certain

purchasers of direct mail to obtain a direct-mail form;

providing for the use of such form; amending s. 212.08,

F.S., relating to exemptions from the sales and use tax;

defining and redefining terms used with respect to the

exemption for general groceries; defining and redefining

terms used with respect to the exemption for medical

products and supplies; revising that exemption; conforming

a cross-reference; creating s. 212.094, F.S.; requiring a

purchaser seeking a refund or credit under ch. 212, F.S.,

to submit a written request for the refund or credit;

providing a time period within which the dealer must

respond to the written request; amending s. 212.12, F.S.;

providing for a monetary allowance for tax credits to

certified service providers and voluntary sellers pursuant

to the Streamlined Sales and Use Tax Agreement; providing

for computation of tax due; deleting the brackets for

state and discretionary sales surtax calculations;

amending s. 212.17, F.S.; prescribing additional

guidelines and procedures with respect to dealer credits

for taxes paid on worthless accounts; creating s. 213.052,

F.S.; providing for notice of state sales or use tax rate

changes; creating s. 213.0521, F.S.; providing the

effective date for state sales and use tax rate changes;

amending s. 213.21, F.S.; providing for amnesty to certain

sellers for uncollected or unpaid sales and use taxes;

amending s. 213.256, F.S.; relating to simplified sales

and use tax administration; defining terms; providing that

authority to administer the Streamlined Sales and Use Tax

Agreement rests with a governing board comprised of

representatives of member states; providing for continuing

effect of the agreement; providing for annual

recertification; creating s. 213.2565, F.S.; providing for

the registration of sellers, the certification of a person

as a certified service provider, and the certification of

a software program as a certified automated system by the

governing board under the Streamlined Sales and Use Tax

Agreement; amending ss. 196.012, 203.01, 212.03, 212.031,

212.052, 212.0596, 212.081, 212.13, 213.015, 551.102, and

790.0655, F.S.; conforming cross-references; repealing s.

212.0596(6), F.S., relating to the exemption from

collecting and remitting local option surtaxes for certain

dealers who make mail order sales; declaring legislative

intent; providing for the adoption of emergency rules;

providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 212.02, Florida Statutes, is amended to

read:

212.02 Definitions.--As used in this chapter, the term The

following terms and phrases when used in this chapter have the

meanings ascribed to them in this section, except where the

context clearly indicates a different meaning:

(1) The term "Admissions" means and includes the net sum of

money after the deduction of any federal taxes for admitting a

person or vehicle or persons to a any place of amusement, sport,

or recreation or for the privilege of entering or staying in a

any place of amusement, sport, or recreation, including, but not

limited to, theaters, outdoor theaters, shows, exhibitions,

games, races, or any place where charge is made through the by

way of sale of tickets, gate charges, seat charges, box charges,

season pass charges, cover charges, greens fees, participation

fees, entrance fees, or other fees or receipts of anything of

value measured on an admission or entrance or length of stay or

seat box accommodations in any place where there is an any

exhibition, amusement, sport, or recreation, and all dues and

fees paid to private clubs and membership clubs providing

recreational or physical fitness facilities, including, but not

limited to, golf, tennis, swimming, yachting, boating, athletic,

exercise, and fitness facilities, except physical fitness

100

facilities owned or operated by a any hospital licensed under

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chapter 395.

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(2) "Agent" means any person appointed by, or authorized to

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act for, a principal in a transaction involving the sale of an

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item of tangible personal property.

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(3) "Agricultural commodity" means horticultural products,

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aquacultural products, poultry and farm products, and livestock

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and livestock products.

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(4) "Agricultural production" means the production of

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plants and animals useful to humans, including the preparation,

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planting, cultivating, or harvesting of these products or any

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other processes necessary to accomplish production through the

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harvest phase, and includes aquaculture, horticulture,

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floriculture, viticulture, forestry, dairy, livestock, poultry,

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bees, and all other forms of farm products and farm production.

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(5)(2) "Business" means any activity engaged in by any

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person, or caused to be engaged in, by a person him or her, with

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the object of private or public gain, benefit, or advantage,

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directly or indirectly either direct or indirect. Except for the

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sale sales of any aircraft, boat, mobile home, or motor vehicle,

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the term does "business" shall not be construed in this chapter

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to include occasional or isolated sales or transactions involving

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tangible personal property or services by a person who does not

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hold himself or herself out as engaged in business or sales of

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unclaimed tangible personal property under s. 717.122, but does

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include includes other charges for the sale or rental of tangible

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personal property, sales of services taxable under this chapter,

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sales of or charges of admission, communication services, all

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rentals and leases of living quarters, other than low-rent

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housing operated under chapter 421, sleeping or housekeeping

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accommodations in hotels, apartment houses, roominghouses,

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tourist or trailer camps, or mobile home or recreational vehicle

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parks, and all rentals of or licenses in real property, other

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than low-rent housing operated under chapter 421, all leases or

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rentals of or licenses in parking lots or garages for motor

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vehicles, docking or storage spaces for boats in boat docks or

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marinas as defined in this chapter and made subject to a tax

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imposed by this chapter. The term does "business" shall not be

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construed in this chapter to include the leasing, subleasing, or

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licensing of real property by one corporation to another if all

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of the stock of both such corporations is owned, directly or

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through one or more wholly owned subsidiaries, by a common parent

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corporation; the property was in use before prior to July 1,

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1989, title to the property was transferred after July 1, 1988,

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and before July 1, 1989, between members of an affiliated group,

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as defined in s. 1504(a) of the Internal Revenue Code of 1986,

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which group included both such corporations, and there is no

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substantial change in the use of the property following the

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transfer of title; the leasing, subleasing, or licensing of the

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property was required by an unrelated lender as a condition of

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providing financing to one or more members of the affiliated

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group; and the corporation to which the property is leased,

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subleased, or licensed had sales subject to the tax imposed by

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this chapter of at least not less than $667 million during the

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most recent 12-month period ended June 30. A Any tax on such

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sales, charges, rentals, admissions, or other transactions made

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subject to the tax imposed by this chapter shall be collected by

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the state, county, municipality, any political subdivision,

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agency, bureau, or department, or other state or local

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governmental instrumentality in the same manner as other dealers,

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unless specifically exempted by this chapter.

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(3) The terms "cigarettes," "tobacco," or "tobacco

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products" referred to in this chapter include all such products

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as are defined or may be hereafter defined by the laws of the

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state.

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(6) "Certified service provider" has the same meaning as in

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s. 213.256.

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(7) "Coin-operated amusement machine" means a machine

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operated by coin, slug, token, coupon, or similar device for the

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purposes of entertainment or amusement. The term includes coin-

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operated pinball machines, music machines, juke boxes, mechanical

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games, video games, arcade games, billiard tables, moving picture

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viewers, shooting galleries, and all similar amusement devices.

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(8)(4) "Cost price" means the actual cost of articles of

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tangible personal property without any deductions for therefrom

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on account of the cost of materials used, labor or service costs,

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transportation charges, or any other expenses whatsoever.

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(9)(5) The term "Department" means the Department of

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Revenue.

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(10) "Dealer" means a person who:

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(a) Manufactures or produces tangible personal property for

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sale at retail; for use, consumption, or distribution; or for

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storage to be used or consumed in this state.

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(b) Imports, or causes to be imported, tangible personal

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property from any state or foreign country for sale at retail;

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for use, consumption, or distribution; or for storage to be used

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or consumed in this state.

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who has in his or her possession for sale at retail; or for use,

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consumption, or distribution; or for storage to be used or

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consumed in this state, tangible personal property, and includes

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a retailer who transacts a mail order sale.

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(d) Has sold at retail; or used, or consumed, or

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distributed; or stored for use or consumption in this state,

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tangible personal property and who cannot prove that the tax

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levied by this chapter has been paid. However, the term does not

196

include a person who is not a dealer under any other paragraph of

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this subsection and whose only owned or leased property in this

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state, including property owned or leased by an affiliate, is

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located on the premises of a printer with whom it has contracted

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for printing, if the property consists of the final printed

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product, property that becomes a part of the final printed

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product, or property from which the printed product is produced.

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(e) Leases or rents tangible personal property for

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consideration, permitting the use or possession of such property

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without transferring title to the property, except as expressly

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provided for under this chapter.

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(f) Maintains within this state, directly or by a

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subsidiary, an office, distributing house, salesroom, or house,

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warehouse, or other place of business.

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(g) Solicits business through direct representatives,

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indirect representatives, or manufacturers' agents; through

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distribution of catalogs or other advertising matter; or by any

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other means, for the purpose of receiving orders for tangible

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personal property from consumers for use, consumption,

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distribution, and storage for use or consumption in this state.

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Such dealer shall collect the tax imposed by this chapter from

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the purchaser and may not bring a cause of action, in law or in

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equity, on a sale or transaction in this state unless it is

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affirmatively shown that this chapter has been fully complied

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with.

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(h) Solicits, receives, and accepts orders for future

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delivery from consumers in the state as a representative, agent,

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or solicitor for an out-of-state principal who refuses to

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(i) Leases or grants a license to use, occupy, or enter

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upon living quarters, sleeping or housekeeping accommodations in

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hotels, apartment houses, roominghouses, tourist or trailer

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camps, mobile home or recreational vehicle parks, real property,

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space or spaces in parking lots or garages for motor vehicles,

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docking or storage space or spaces for boats in boat docks or

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marinas, or tie-down or storage space or spaces for aircraft at

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airports. The term also includes a person who has leased,

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occupied, or used or was entitled to use living quarters,

234

sleeping or housekeeping accommodations in hotels, apartment

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houses, roominghouses, tourist or trailer camps, mobile home or

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recreational vehicle parks, real property, spaces in parking lots

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or garages for motor vehicles or docking or storage spaces for

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boats in boat docks or marinas, or who has purchased

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communication services or electric power or energy, and who

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cannot prove that the tax levied by this chapter has been paid to

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the vendor or lessor on any such transactions. The term does not

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include a person who leases, lets, rents, or grants a license to

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use, occupy, or enter upon living quarters, sleeping quarters, or

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housekeeping accommodations in apartment houses, roominghouses,

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tourist camps, or trailer camps, mobile home or recreational

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vehicle parks, and who exclusively enters into a bona fide

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written agreement for continuous residence for longer than 6

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months with a person who leases, lets, rents, or is granted a

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license to use the property.

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(j) Sells, provides, or performs a service taxable under

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this chapter. The term includes a person who purchases, uses, or

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consumes a service taxable under this chapter and cannot prove

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that the tax has been paid to the seller of the taxable service.

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(k) Solicits, offers, provides, enters into, issues, or

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delivers a service warranty taxable under this chapter, or who

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receives on behalf of such a person, consideration from a service

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warranty holder.

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(1l) "Delivery charges" means charges by the seller of

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personal property or services for preparation and delivery to a

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location designated by the purchaser of personal property or

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services, including, but not limited to, transportation,

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shipping, postage, handling, crating, and packing. The term does

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not include the charges for delivery of direct mail if the

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charges are separately stated on an invoice or similar billing

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document given to the purchaser.

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(12) "Diesel fuel" means any liquid product, gas product,

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or combination thereof used in an internal combustion engine or

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motor to propel any form of vehicle, machine, or mechanical

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contrivance. The term includes, but is not limited to, all forms

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of fuel commonly or commercially known or sold as diesel fuel or

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kerosene. However, the term does not include butane gas, propane

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gas, or any other form of liquefied petroleum gas or compressed

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natural gas.

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(13) "Direct mail" means printed material delivered or

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distributed by United States mail or other delivery service to a

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mass audience or to addressees on a mailing list provided by the

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purchaser or at the direction of the purchaser if the cost of the

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items is not billed directly to the recipients. The term includes

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tangible personal property supplied directly or indirectly by the

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purchaser to the direct mail seller for inclusion in the package

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containing the printed material. The term does not include

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multiple items of printed material delivered to a single address.

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(14)(6) "Enterprise zone" means an area of the state

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designated pursuant to s. 290.0065. This subsection expires on

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the date specified in s. 290.016 for the expiration of the

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Florida Enterprise Zone Act.

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(15)(7) "Factory-built building" means a structure

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manufactured in a manufacturing facility for installation or

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erection as a finished building. The term; "factory-built

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building" includes, but is not limited to, residential,

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commercial, institutional, storage, and industrial structures.

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(16) "Farmer" means a person who is directly engaged in the

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business of producing crops, livestock, or other agricultural

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commodities. The term includes, but is not limited to, horse

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breeders, nurserymen, dairy farmers, poultry farmers, cattle

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ranchers, apiarists, and persons raising fish.

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(17) "Forest" means the land stocked by trees of any size

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used in the production of forest products, or formerly having

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such tree cover and not currently being developed for nonforest

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use.

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(18) "Gross sales" means the sum total of all sales of

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tangible personal property without any deduction of any kind or

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character, except as otherwise provided in this chapter.

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(8) "In this state" or "in the state" means within the

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state boundaries of Florida as defined in s. 1, Art. II of the

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State Constitution and includes all territory within these limits

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owned by or ceded to the United States.

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(19)(9) The term "Intoxicating beverages" or "alcoholic

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beverages" means referred to in this chapter includes all such

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beverages as are so defined or may be hereafter defined by the

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laws of the state.

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(20)(10) "Lease," "let," or "rental" means:

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(a) The leasing or renting of living quarters or sleeping

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or housekeeping accommodations in hotels, apartment houses,

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roominghouses, tourist camps, or trailer camps, mobile home

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parks, or recreational vehicle parks and real property, the same

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being defined as follows:

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1.(a) A "hotel" is every building or other structure kept,

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used, maintained, or advertised as, or held out to the public to

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be, a place where sleeping accommodations are supplied for pay to

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transient or permanent guests or tenants, in which 10 or more

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rooms are furnished for the accommodation of such guests, and

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having one or more dining rooms or cafes where meals or lunches

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are served to such transient or permanent guests; such sleeping

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accommodations and dining rooms or cafes being conducted in the

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same building or buildings in connection therewith, shall, for

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the purpose of this chapter, be deemed a hotel.

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2.(b) An "apartment house" is any building, or part

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thereof, where separate accommodations for two or more families

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living independently of each other are supplied to transient or

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permanent guests or tenants shall for the purpose of this chapter

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be deemed an apartment house.

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3.(c) A "roominghouse" is every house, boat, vehicle, motor

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court, trailer court, or other structure or any place or location

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kept, used, maintained, or advertised as, or held out to the

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public to be, a place where living quarters or sleeping or

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housekeeping accommodations are supplied for pay to transient or

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permanent guests or tenants, whether in one or adjoining

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buildings, shall for the purpose of this chapter be deemed a

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roominghouse.

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4.(d) A "room" in all hotels, apartment houses, and

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roominghouses includes within the meaning of this chapter, the

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parlor, dining room, sleeping porch porches, kitchen, office, and

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sample rooms shall be construed to mean "rooms."

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5.(e) A "tourist camp" is a place where two or more tents,

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tent houses, or camp cottages are located and offered by a person

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or municipality for sleeping or eating accommodations, most

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generally to the transient public for either a direct money

349

consideration or an indirect benefit to the lessor or owner in

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connection with a related business.

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6.(f) A "trailer camp," "mobile home park," or

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"recreational vehicle park" is a place where space is offered,

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with or without service facilities, by any person persons or

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municipality to the public for the parking and accommodation of

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two or more automobile trailers, mobile homes, or recreational

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vehicles which are used for lodging, for either a direct money

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consideration or an indirect benefit to the lessor or owner in

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connection with a related business, such space being hereby

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defined as living quarters, and the rental price includes thereof

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shall include all service charges paid to the lessor.

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(b)(g) The transfer of possession or control "Lease,"

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"let," or "rental" also means the leasing or rental of tangible

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personal property for a fixed or indeterminate term and the

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possession or use thereof by the lessee or rentee for a

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consideration, without transfer of the title of such property,

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except as expressly provided to the contrary herein. A clause in

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an agreement for a future option to purchase or to extend an

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agreement does not preclude an agreement from being a lease or

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rental. This provision may be used for sales and use tax purposes

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regardless of whether a transaction is characterized as a lease

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or rental under generally accepted accounting principles, the

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Internal Revenue Code, the Uniform Commercial Code, or other

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provisions of federal, state, or local law. Agreements covering

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motor vehicles and trailers are included if the amount of

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consideration may be increased or decreased by reference to the

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amount realized upon sale or disposition of the property as

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defined in 26 U.S.C. s. 7701(h)(1).

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1. This paragraph does not apply to:

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a. A transfer of possession or control of property under a

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security agreement or deferred payment plan that requires the

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transfer of title upon completion of the required payments;

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b. A transfer of possession or control of property under an

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agreement that requires the transfer of title upon completion of

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required payments and payment of an option price that does not

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exceed the greater of $100 or 1 percent of the total required

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payments; or

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c. Providing tangible personal property along with an

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operator for a fixed or indeterminate period of time where the

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operator is necessary for the equipment to perform as designed.

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For the purpose of this sub-subparagraph, an operator must do

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more than maintain, inspect, or set up the tangible personal

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property.

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2. The term "lease," "let," or "rental" does not include:

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mean

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a. Hourly, daily, or mileage charges, to the extent that

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such charges are subject to the jurisdiction of the United States

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Interstate Commerce Commission, for when such charges are paid by

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reason of the presence of railroad cars owned by another on the

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tracks of the taxpayer, or charges made pursuant to car service

400

agreements.

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b. The term "lease," "let," "rental," or "license" does not

402

include Payments made to an owner of high-voltage bulk

403

transmission facilities in connection with the possession or

404

control of such facilities by a regional transmission

405

organization, independent system operator, or similar entity

406

under the jurisdiction of the Federal Energy Regulatory

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Commission. However, if where two taxpayers, in connection with

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the interchange of facilities, rent or lease property, each to

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the other, for use in providing or furnishing any of the services

410

mentioned in s. 166.231, the term "lease or rental" applies means

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only to the net amount of rental involved.

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(c)(h) The leasing or rental of real property. "Real

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property" means the surface land, improvements thereto, and

414

fixtures, and is synonymous with "realty" and "real estate."

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1.(i) "License," as used in this chapter with reference to

416

the use of real property, means the granting of a privilege to

417

use or occupy a building or a parcel of real property for any

418

purpose.

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2.(j) Privilege, franchise, or concession fees, or fees for

420

a license to do business, paid to an airport are not payments for

421

leasing, letting, renting, or granting a license for the use of

422

real property.

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(21) "Livestock" means all animals of the equine, bovine,

424

or swine class, including goats, sheep, mules, horses, hogs,

425

cattle, and other grazing animals raised for commercial purposes.

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The term also includes ostriches and fish raised for commercial

427

purposes.

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(22)(11) "Motor fuel" means and includes what is commonly

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known and sold as gasoline and fuels containing a mixture of

430

gasoline and other products.

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(23)(12) "Person" means an includes any individual, firm,

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copartnership, joint adventure, association, corporation, estate,

433

trust, business trust, receiver, syndicate, or other group or

434

combination acting as a unit and also includes any political

435

subdivision, municipality, state agency, or other public or

436

quasi-public instrumentality bureau, or department and includes

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the plural as well as the singular number.

438

(24) "Power farm equipment" means moving or stationary

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equipment that contains within itself the means for its own

440

propulsion or power and moving or stationary equipment that is

441

dependent upon an external power source to perform its functions.

442

(25) "Prewritten computer software" means computer

443

software, including prewritten upgrades, which is not designed

444

and developed by the author or other creator to the

445

specifications of a specific purchaser. The combining of two or

446

more prewritten computer software programs, or portions thereof,

447

does not cause the combination to be other than "prewritten

448

computer software." The term includes software designed and

449

developed by the author or other creator to the specifications of

450

a specific purchaser when it is sold to a person other than that

451

purchaser. If a person who modifies or enhances computer software

452

is not the author or creator of the software, the person shall be

453

deemed to be the author or creator only of the modifications or

454

enhancements. Prewritten computer software, or a portion thereof,

455

which is modified or enhanced to any degree to the specifications

456

of a specific purchaser remains prewritten computer software,

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unless there is a reasonable, separately stated charge or an

458

invoice or other statement of the price given to the purchaser

459

for the modification or enhancement.

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(26) "Qualified aircraft" means aircraft having a maximum

461

certified takeoff weight of less than 10,000 pounds, equipped

462

with twin turbofan engines that meet Stage IV noise requirements,

463

and used by a business, operating as an on-demand air carrier

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under Federal Aviation Administration Regulation Title 14,

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chapter I, part 135, Code of Federal Regulations, which owns or

466

leases and operates a fleet of at least 25 such aircraft in this

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state.

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(27) "Real property" means the surface land, improvements

469

thereto, and fixtures, and is synonymous with "realty" and "real

470

estate." For the purposes of this definition:

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(a) "Fixtures" means items that are an accessory to a

472

building, other structure, or land and that do not lose their

473

identity as accessories when installed, but do become permanently

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attached to realty. It is not necessary for the owner of the item

475

to also own the real property to which it is attached. However,

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the term does not include the following items, regardless of

477

whether such items are attached to real property in a permanent

478

manner: property that is required to be registered, licensed,

479

titled, or documented by this state or by the Federal Government,

480

including, but not limited to, mobile homes, except for mobile

481

homes assessed as real property, or industrial machinery or

482

equipment. For purposes of this paragraph, industrial machinery

483

or equipment is not limited to machinery and equipment used to

484

manufacture, process, compound, or produce tangible personal

485

property.

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(b) "Improvements to real property" include the activities

487

of building, erecting, constructing, altering, improving,

488

repairing, or maintaining real property.

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(28)(13) "Retailer" means and includes every person engaged

490

in the business of making sales at retail or for distribution, or

491

use, or consumption, or storage to be used or consumed in this

492

state.

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(29)(14)(a) "Retail sale" or a "sale at retail" means a

494

sale of tangible personal property or services taxable under this

495

chapter to a consumer or to any person for any purpose other than

496

for resale in the form of tangible personal property or services

497

taxable under this chapter, and includes all such transactions

498

that may be made in lieu of retail sales or sales at retail. The

499

term includes a mail order sale, as defined in s. 212.0596(1).

500

(a) A sale for resale includes a sale of qualifying

501

property. As used in this paragraph, the term "qualifying

502

property" means tangible personal property, other than

503

electricity, which is used or consumed by a government contractor

504

in the performance of a qualifying contract, as defined in s.

505

212.08(17)(c), if to the extent that the cost of the property is

506

allocated or charged as a direct item of cost to the such

507

contract, title to the which property vests in or passes to the

508

government under the contract. The term "government contractor"

509

includes prime contractors and subcontractors. As used in this

510

paragraph, a cost is a "direct item of cost" if it is a "direct

511

cost" as defined in 48 C.F.R. s. 9904.418-30(a)(2), or similar

512

successor provisions, including costs identified specifically

513

with a particular contract.

514

(b) The terms "retail sales," "sales at retail," "use,"

515

"storage," and "consumption" include the sale, use, storage, or

516

consumption of all tangible advertising materials imported or

517

caused to be imported into this state. Tangible advertising

518

material includes displays, display containers, brochures,

519

catalogs, price lists, point-of-sale advertising, and technical

520

manuals or any tangible personal property that which does not

521

accompany the product to the ultimate consumer.

522

523

"consumption" do not include materials, containers, labels,

524

sacks, bags, or similar items intended to accompany a product

525

sold to a customer without which delivery of the product would be

526

impracticable because of the character of the contents and be

527

used only one time only for packaging tangible personal property

528

for sale, or for the convenience of the customer, or for

529

packaging in the process of providing a service taxable under

530

this chapter. If When a separate charge for packaging materials

531

is made, the charge is shall be considered part of the sales

532

price or rental charge for purposes of determining the

533

applicability of tax. The terms do not include the sale, use,

534

storage, or consumption of industrial materials, including

535

chemicals and fuels except as provided herein, for future

536

processing, manufacture, or conversion into articles of tangible

537

personal property for resale if the when such industrial

538

materials, including chemicals and fuels except as provided

539

herein, become a component or ingredient of the finished product.

540

However, the terms include the sale, use, storage, or consumption

541

of tangible personal property, including machinery and equipment

542

or parts thereof, purchased electricity, and fuels used to power

543

machinery, if the when such items are used and dissipated in

544

fabricating, converting, or processing tangible personal property

545

for sale, even though they may become ingredients or components

546

of the tangible personal property for sale through accident,

547

wear, tear, erosion, corrosion, or similar means. The terms do

548

not include the sale of materials to a registered repair facility

549

for use in repairing a motor vehicle, airplane, or boat, if the

550

when such materials are incorporated into and sold as part of the

551

repair. Such a sale shall be deemed a purchase for resale by the

552

repair facility, even though every material is not separately

553

stated or separately priced on the repair invoice.

554

(d) "Gross sales" means the sum total of all sales of

555

tangible personal property as defined herein, without any

556

deduction whatsoever of any kind or character, except as provided

557

in this chapter.

558

(e) The term "retail sale" includes a mail order sale, as

559

defined in s. 212.0596(1).

560

(30)(15) "Sale" means and includes:

561

(a) Any transfer of title or possession, or both, exchange,

562

barter, license, lease, or rental, conditional or otherwise, in

563

any manner or by any means whatsoever, of tangible personal

564

property for a consideration.

565

(b) The leasing or rental of living quarters or sleeping or

566

housekeeping accommodations in hotels, apartment houses or

567

roominghouses, or tourist or trailer camps, as hereinafter

568

defined in this chapter.

569

570

imprinting of tangible personal property for a consideration for

571

consumers who furnish, either directly or indirectly, the

572

materials used in the producing, fabricating, processing,

573

printing, or imprinting.

574

(d) The furnishing, preparing, or serving for a

575

consideration of any tangible personal property for consumption

576

on or off the premises of the person furnishing, preparing, or

577

serving the such tangible personal property, which includes the

578

sale of meals or prepared food by an employer to his or her

579

employees.

580

(e) A transaction whereby the possession of property is

581

transferred but the seller retains title as security for the

582

payment of the price.

583

(31)(16) "Sales price" means the total amount of

584

consideration, including cash, credit, property, and services,

585

for which personal property or services are sold, leased, or

586

rented, valued in money, whether received in money or otherwise,

587

and applies to the measure subject to the sales tax. paid for

588

tangible personal property, including any services that are a

589

part of the sale, valued in money, whether paid in money or

590

otherwise, and includes any amount for which credit is given to

591

the purchaser by the seller, without any deduction therefrom on

592

account of the cost of the property sold, the cost of materials

593

used, labor or service cost, interest charged, losses, or any

594

other expense whatsoever. "Sales price" also includes the

595

consideration for a transaction which requires both labor and

596

material to alter, remodel, maintain, adjust, or repair tangible

597

personal property. Trade-ins or discounts allowed and taken at

598

the time of sale shall not be included within the purview of this

599

subsection. "Sales price" also includes the full face value of

600

any coupon used by a purchaser to reduce the price paid to a

601

retailer for an item of tangible personal property; where the

602

retailer will be reimbursed for such coupon, in whole or in part,

603

by the manufacturer of the item of tangible personal property; or

604

whenever it is not practicable for the retailer to determine, at

605

the time of sale, the extent to which reimbursement for the

606

coupon will be made. The term "sales price" does not include

607

federal excise taxes imposed upon the retailer on the sale of

608

tangible personal property. The term "sales price" does include

609

federal manufacturers' excise taxes, even if the federal tax is

610

listed as a separate item on the invoice. To the extent required

611

by federal law, the term "sales price" does not include charges

612

for Internet access services which are not itemized on the

613

customer's bill, but which can be reasonably identified from the

614

selling dealer's books and records kept in the regular course of

615

business. The dealer may support the allocation of charges with

616

books and records kept in the regular course of business covering

617

the dealer's entire service area, including territories outside

618

this state.

619

(a) The sales price may be adjusted to include a deduction

620

for:

621

1. The seller's cost of the property sold.

622

2. The cost of materials used, labor or service cost,

623

interest, losses, all costs of transportation to the seller, all

624

taxes imposed on the seller, and any other expense of the seller.

625

3. Charges by the seller for services necessary to complete

626

the sale, other than delivery and installation charges.

627

4. Delivery charges.

628

5. Installation charges.

629

(b) The sales price does not include:

630

1. Trade-ins allowed and taken at the time of sale if the

631

amount is separately stated on the invoice, bill of sale, or

632

similar document given to the purchaser.

633

2. Discounts, including cash, term, or coupons, which are

634

not reimbursed by a third party, which are allowed by a seller,

635

and which are taken by a purchaser at the time of sale.

636

3. Interest, financing, and carrying charges from credit

637

extended on the sale of personal property or services, if the

638

amount is separately stated on the invoice, bill of sale, or

639

similar document given to the purchaser.

640

4. Any taxes legally imposed directly on the consumer which

641

are separately stated on the invoice, bill of sale, or similar

642

document given to the purchaser.

643

(17) "Diesel fuel" means any liquid product, gas product,

644

or combination thereof used in an internal combustion engine or

645

motor to propel any form of vehicle, machine, or mechanical

646

contrivance. This term includes, but is not limited to, all forms

647

of fuel commonly or commercially known or sold as diesel fuel or

648

kerosene. However, the term "diesel fuel" does not include butane

649

gas, propane gas, or any other form of liquefied petroleum gas or

650

compressed natural gas.

651

(32) "Seller" means any person making sales, leases, or

652

rentals of tangible personal property or services.

653

(33) "Solar energy system" means the equipment and

654

requisite hardware that provide and are used for collecting,

655

transferring, converting, storing, or using incident solar energy

656

for water heating, space heating, cooling, or other applications

657

that would otherwise require the use of a conventional source of

658

energy such as petroleum products, natural gas, manufactured gas,

659

or electricity.

660

(34) "Space flight" means any flight designed for

661

suborbital, orbital, or interplanetary travel of a space vehicle,

662

satellite, or station of any kind.

663

(35) "Spaceport activities" means activities directed or

664

sponsored by Space Florida on spaceport territory pursuant to its

665

powers and responsibilities under the Space Florida Act.

666

(36)(18) "Storage" means and includes any keeping or

667

retention in this state of tangible personal property for use or

668

consumption in this state or for any purpose other than sale at

669

retail in the regular course of business.

670

(37)(19) "Tangible personal property" means and includes

671

personal property that which may be seen, weighed, measured, or

672

touched or is in any manner perceptible to the senses, including

673

electric power or energy, water, gas, steam, prewritten computer

674

software, boats, motor vehicles and mobile homes as defined in s.

675

320.01(1) and (2), aircraft as defined in s. 330.27, and all

676

other types of vehicles. The term "tangible personal property"

677

does not include stocks, bonds, notes, insurance, or other

678

obligations or securities or pari-mutuel tickets sold or issued

679

under the racing laws of the state.

680

(38) "Tobacco," or "tobacco products" means all such

681

products as are defined or may be hereafter defined by the laws

682

of this state.

683

(39) "Transportation equipment" means:

684

(a) Locomotives and rail cars that are used for the

685

carriage of persons or property in interstate commerce;

686

(b) Trucks and truck tractors having a Gross Vehicle Weight

687

Rating (GVWR) of 10,001 pounds or greater, trailers,

688

semitrailers, or passenger buses that are registered through the

689

International Registration Plan and operated under authority of a

690

carrier authorized and certificated by the United States

691

Department of Transportation or other federal authority to engage

692

in the carriage of persons or property in interstate commerce;

693

694

and certificated by the United States Department of

695

Transportation or other federal or foreign authority to engage in

696

the carriage of persons or property in interstate or foreign

697

commerce; or

698

(d) Containers designed for use on and component parts

699

attached to or secured on the items set forth in paragraphs (a)

700

through (c).

701

(40)(20) "Use" means and includes the exercise of any right

702

or power over tangible personal property incident to the

703

ownership thereof, or interest therein, except that it does not

704

include the sale at retail of that property in the regular course

705

of business. The term "use" does not include the loan of an

706

automobile by a motor vehicle dealer to a high school for use in

707

its driver education and safety program. The term "use" does not

708

include a contractor's use of "qualifying property" as defined by

709

paragraph (29)(a) (14)(a).

710

(41)(21) The term "use tax" means the tax imposed for

711

referred to in this chapter includes the use, the consumption,

712

the distribution, and the storage of tangible personal property

713

as herein defined.

714

(22) "Spaceport activities" means activities directed or

715

sponsored by Space Florida on spaceport territory pursuant to its

716

powers and responsibilities under the Space Florida Act.

717

(23) "Space flight" means any flight designed for

718

suborbital, orbital, or interplanetary travel of a space vehicle,

719

satellite, or station of any kind.

720

(24) "Coin-operated amusement machine" means any machine

721

operated by coin, slug, token, coupon, or similar device for the

722

purposes of entertainment or amusement. The term includes, but is

723

not limited to, coin-operated pinball machines, music machines,

724

juke boxes, mechanical games, video games, arcade games, billiard

725

tables, moving picture viewers, shooting galleries, and all other

726

similar amusement devices.

727

(25) "Sea trial" means a voyage for the purpose of testing

728

repair or modification work, which is in length and scope

729

reasonably necessary to test repairs or modifications, or a

730

voyage for the purpose of ascertaining the seaworthiness of a

731

vessel. If the sea trial is to test repair or modification work,

732

the owner or repair facility shall certify, in a form required by

733

the department, what repairs have been tested. The owner and the

734

repair facility may also be required to certify that the length

735

and scope of the voyage were reasonably necessary to test the

736

repairs or modifications.

737

(26) "Solar energy system" means the equipment and

738

requisite hardware that provide and are used for collecting,

739

transferring, converting, storing, or using incident solar energy

740

for water heating, space heating, cooling, or other applications

741

that would otherwise require the use of a conventional source of

742

energy such as petroleum products, natural gas, manufactured gas,

743

or electricity.

744

(27) "Agricultural commodity" means horticultural,

745

aquacultural, poultry and farm products, and livestock and

746

livestock products.

747

(28) "Farmer" means a person who is directly engaged in the

748

business of producing crops, livestock, or other agricultural

749

commodities. The term includes, but is not limited to, horse

750

breeders, nurserymen, dairy farmers, poultry farmers, cattle

751

ranchers, apiarists, and persons raising fish.

752

(29) "Livestock" includes all animals of the equine,

753

bovine, or swine class, including goats, sheep, mules, horses,

754

hogs, cattle, ostriches, and other grazing animals raised for

755

commercial purposes. The term "livestock" shall also include fish

756

raised for commercial purposes.

757

(30) "Power farm equipment" means moving or stationary

758

equipment that contains within itself the means for its own

759

propulsion or power and moving or stationary equipment that is

760

dependent upon an external power source to perform its functions.

761

(31) "Forest" means the land stocked by trees of any size

762

used in the production of forest products, or formerly having

763

such tree cover, and not currently developed for nonforest use.

764

(32) "Agricultural production" means the production of

765

plants and animals useful to humans, including the preparation,

766

planting, cultivating, or harvesting of these products or any

767

other practices necessary to accomplish production through the

768

harvest phase, and includes aquaculture, horticulture,

769

floriculture, viticulture, forestry, dairy, livestock, poultry,

770

bees, and any and all forms of farm products and farm production.

771

(33) "Qualified aircraft" means any aircraft having a

772

maximum certified takeoff weight of less than 10,000 pounds and

773

equipped with twin turbofan engines that meet Stage IV noise

774

requirements that is used by a business operating as an on-demand

775

air carrier under Federal Aviation Administration Regulation

776

Title 14, chapter I, part 135, Code of Federal Regulations, that

777

owns or leases and operates a fleet of at least 25 of such

778

aircraft in this state.

779

Section 2. The amendment of the terms "lease," "let," and

780

"rental" in s. 212.02, Florida Statutes, made by this act applies

781

prospectively only from January 1, 2009, and does not apply

782

retroactively to leases or rentals existing before that date.

783

Section 3. Subsection (6) of section 212.0306, Florida

784

Statutes, is amended to read:

785

212.0306 Local option food and beverage tax; procedure for

786

levying; authorized uses; administration.--

787

(6) Any county levying a tax authorized by this section

788

must locally administer the tax using the powers and duties

789

enumerated for local administration of the tourist development

790

tax by s. 125.0104, 1992 Supplement to the Florida Statutes 1991.

791

The county's ordinance shall also provide for brackets applicable

792

to taxable transactions.

793

Section 4. Paragraph (b) of subsection (1) of section

794

212.04, Florida Statutes, is amended to read:

795

212.04 Admissions tax; rate, procedure, enforcement.--

796

(1)

797

(b) For the exercise of this such privilege, a tax is

798

levied at the rate of 6 percent of the sales price, or the actual

799

value received for from such admissions, which 6 percent shall be

800

added to and collected with all such admissions paid by from the

801

purchaser thereof, and such tax shall be paid for the exercise of

802

the privilege as defined in the preceding paragraph. Each ticket

803

must show on its face the actual sales price of the admission, or

804

each dealer selling the admission must prominently display at the

805

box office or other place where the admission charge is made a

806

notice disclosing the price of the admission, and the tax shall

807

be computed and collected on the basis of the actual price of the

808

admission charged by the dealer. The sale price or actual value

809

of admission shall, for the purpose of this chapter, be that

810

price remaining after deduction of federal taxes and state or

811

locally imposed or authorized seat surcharges, taxes, or fees, if

812

any, imposed upon such admission. The sale price or actual value

813

does not include separately stated ticket service charges that

814

are imposed by a facility ticket office or a ticketing service

815

and added to a separately stated, established ticket price. The

816

rate of tax on each admission shall be determined in accordance

817

with according to the brackets established by s. 212.12(9).

818

Section 5. Paragraphs (c) and (e) of subsection (1) and

819

subsection (4) of section 212.05, Florida Statutes, are amended

820

to read:

821

212.05 Sales, storage, use tax.--It is hereby declared to

822

be the legislative intent that every person is exercising a

823

taxable privilege who engages in the business of selling tangible

824

personal property at retail in this state, including the business

825

of making mail order sales, or who rents or furnishes any of the

826

things or services taxable under this chapter, or who stores for

827

use or consumption in this state any item or article of tangible

828

personal property as defined herein and who leases or rents such

829

property within the state.

830

(1) For the exercise of such privilege, a tax is levied on

831

each taxable transaction or incident, which tax is due and

832

payable as follows:

833

834

from the lease or rental of tangible personal property., as

835

defined herein; however, the following special provisions apply

836

to the lease or rental of motor vehicles:

837

1. When a motor vehicle is leased or rented for a period of

838

less than 12 months:

839

a. If the motor vehicle is rented in Florida, the entire

840

amount of such rental is taxable, even if the vehicle is dropped

841

off in another state.

842

b. If the motor vehicle is rented in another state and

843

dropped off in Florida, the rental is exempt from Florida tax.

844

2. Except as provided in subparagraph 3., for the lease or

845

rental of a motor vehicle for a period of not less than 12

846

months, sales tax is due on the lease or rental payments if the

847

vehicle is registered in this state; provided, however, that no

848

tax shall be due if the taxpayer documents use of the motor

849

vehicle outside this state and tax is being paid on the lease or

850

rental payments in another state.

851

3. The tax imposed by this chapter does not apply to the

852

lease or rental of a commercial motor vehicle as defined in s.

853

316.003(66)(a) to one lessee or rentee for a period of not less

854

than 12 months when tax was paid on the purchase price of such

855

vehicle by the lessor. To the extent tax was paid with respect to

856

the purchase of such vehicle in another state, territory of the

857

United States, or the District of Columbia, the Florida tax

858

payable shall be reduced in accordance with the provisions of s.

859

212.06(7). This subparagraph shall only be available when the

860

lease or rental of such property is an established business or

861

part of an established business or the same is incidental or

862

germane to such business.

863

(e)1. At the rate of 6 percent on charges for:

864

a. Prepaid calling arrangements. The tax on charges for

865

prepaid calling arrangements shall be collected at the time of

866

sale and remitted by the selling dealer.

867

(I) "Prepaid calling arrangement" means the separately

868

stated retail sale by advance payment of communications services

869

that consist exclusively of telephone calls originated by using

870

an access number, authorization code, or other means that may be

871

manually, electronically, or otherwise entered and that are sold

872

in predetermined units or dollars whose number declines with use

873

in a known amount.

874

(II) The sale or recharge of the prepaid calling

875

arrangement is deemed to take place in accordance with paragraph

876

212.06(2)(d). For a sale of a mobile communications service that

877

is a prepaid calling arrangement, the retail sale may be sourced

878

at If the sale or recharge of the prepaid calling arrangement

879

does not take place at the dealer's place of business, it shall

880

be deemed to take place at the customer's shipping address or, if

881

no item is shipped, at the customer's address or the location

882

associated with the customer's mobile telephone number.

883

(III) The sale or recharge of a prepaid calling arrangement

884

shall be treated as a sale of tangible personal property for

885

purposes of this chapter, whether or not a tangible item

886

evidencing such arrangement is furnished to the purchaser, and

887

the such sale within this state subjects the selling dealer to

888

the jurisdiction of this state for purposes of this subsection.

889

b. The installation of telecommunication and telegraphic

890

equipment.

891

c. Electrical power or energy, except that the tax rate for

892

charges for electrical power or energy is 7 percent.

893

2. The provisions of s. 212.17(3), regarding credit for tax

894

paid on charges subsequently found to be worthless, are shall be

895

equally applicable to a any tax paid under the provisions of this

896

section on charges for prepaid calling arrangements,

897

telecommunication or telegraph services, or electric power

898

subsequently found to be uncollectible. The word "charges" in

899

this paragraph does not include any excise or similar tax levied

900

by the Federal Government, any political subdivision of the

901

state, or any municipality upon the purchase, sale, or recharge

902

of prepaid calling arrangements or upon the purchase or sale of

903

telecommunication, television system program, or telegraph

904

service or electric power, which tax is collected by the seller

905

from the purchaser.

906

(4) The tax imposed pursuant to this chapter shall be due

907

and payable according to the applicable state and local rate

908

provided the brackets set forth in s. 212.12.

909

Section 6. Subsections (6) and (11) of section 212.0506,

910

Florida Statutes, are amended to read:

911

212.0506 Taxation of service warranties.--

912

(6) This tax shall be due and payable according to the

913

applicable state and local rate provided brackets set forth in s.

914

212.12.

915

(11) Any duties imposed by this chapter upon dealers of

916

tangible personal property with respect to collecting and

917

remitting taxes; making returns; keeping books, records, and

918

accounts; and complying with the rules and regulations of the

919

department apply to all dealers as defined in s. 212.06(2)(l).

920

Section 7. Section 212.054, Florida Statutes, is amended to

921

read:

922

212.054 Discretionary sales surtax; limitations,

923

administration, and collection.--

924

(1) A No general excise tax on sales may not shall be

925

levied by the governing body of a any county unless specifically

926

authorized in s. 212.055. Any general excise tax on sales

927

authorized pursuant to that said section shall be administered

928

and collected exclusively as provided in this section.

929

(2)(a) The tax imposed by the governing body of a any

930

county authorized to so levy pursuant to s. 212.055 shall be a

931

discretionary surtax on all transactions occurring in the county

932

which transactions are subject to the state tax imposed on sales,

933

use, services, rentals, admissions, and other transactions by

934

this chapter and on communications services under as defined for

935

purposes of chapter 202.

936

(a) The surtax, if levied, shall be computed as the

937

applicable rate or rates authorized pursuant to s. 212.055 times

938

the amount of taxable sales and taxable purchases representing

939

such transactions. If the surtax is levied on the sale of an item

940

of tangible personal property or on the sale of a service, the

941

surtax shall be computed by multiplying the rate imposed by the

942

county within which the sale occurs by the amount of the taxable

943

sale. The sale of an item of tangible personal property or the

944

sale of a service is not subject to the surtax if the property,

945

the service, or the tangible personal property representing the

946

service is delivered within a county that does not impose a

947

discretionary sales surtax.

948

(b) However:

949

1. A The sales amount above $5,000 on an any item of

950

tangible personal property is shall not be subject to the surtax.

951

However, charges for prepaid calling arrangements, as described

952

defined in s. 212.05(1)(e)1.a., are shall be subject to the

953

surtax. For purposes of administering the $5,000 limitation on an

954

item of tangible personal property, if two or more taxable items

955

of tangible personal property are sold to the same purchaser at

956

the same time and, under generally accepted business practice or

957

industry standards or usage, are normally sold in bulk or are

958

items that, when assembled, comprise a working unit or part of a

959

working unit, the such items shall must be considered a single

960

item for purposes of the $5,000 limitation if when supported by a

961

charge ticket, sales slip, invoice, or other tangible evidence of

962

a single sale or rental.

963

2. For In the case of utility services covering a period

964

starting before and ending billed on or after the effective date

965

of the any such surtax, the rate applies as follows:

966

a. For a rate adoption or increase, the new rate shall

967

apply to the first billing period starting on or after the

968

effective date of the surtax or increase.

969

b. For a rate decrease or termination, the new rate shall

970

apply to bills rendered on or after the effective date of the

971

rate change the entire amount of the charge for utility services

972

shall be subject to the surtax. In the case of utility services

973

billed after the last day the surtax is in effect, the entire

974

amount of the charge on said items shall not be subject to the

975

surtax.

976

977

"Utility service," as used in this paragraph section, does not

978

include any communications services as defined in chapter 202.

979

3. For In the case of written contracts that which are

980

signed before prior to the effective date of the any such surtax

981

for the construction of improvements to real property or for

982

remodeling of existing structures, the surtax shall be paid by

983

the contractor responsible for the performance of the contract.

984

However, the contractor may apply for one refund of the any such

985

surtax paid on materials necessary for the completion of the

986

contract. An Any application for refund must shall be made within

987

no later than 15 months after the following initial imposition of

988

the surtax in that county. The application for refund shall be in

989

the manner prescribed by the department by rule. A complete

990

application must shall include proof of the written contract and

991

of payment of the surtax, and. The application shall contain a

992

sworn statement, signed by the applicant or its representative,

993

attesting to the validity of the application. The department

994

shall, within 30 days after approval of a complete application,

995

certify to the county information necessary for issuance of a

996

refund to the applicant. Counties are hereby authorized to issue

997

refunds for this purpose and must shall set aside from the

998

proceeds of the surtax a sum sufficient to pay any refund

999

lawfully due. Any person who fraudulently obtains or attempts to

1000

obtain a refund pursuant to this subparagraph, in addition to

1001

being liable for repayment of any refund fraudulently obtained

1002

plus a mandatory penalty of 100 percent of the refund, commits is

1003

guilty of a felony of the third degree, punishable as provided in

1004

s. 775.082, s. 775.083, or s. 775.084.

1005

4. For a In the case of any vessel, railroad, or motor

1006

vehicle common carrier entitled to a partial exemption from tax

1007

imposed under this chapter pursuant to s. 212.08(4), (8), or (9),

1008

the basis for imposition of the surtax is shall be the same as

1009

provided in s. 212.08 and the ratio shall be applied each month

1010

to total purchases in this state of property qualified for

1011

proration which is delivered or sold in the taxing county to

1012

establish the portion used and consumed in intracounty movement

1013

and subject to surtax.

1014

(3) Except as otherwise provided in this section, a

1015

discretionary surtax applies to a retail sale, lease, or rental

1016

of tangible personal property, a digital good, or a service if,

1017

under s. 212.06(2), the transaction occurs in a county that

1018

imposes a surtax. For the purpose of this section, A transaction

1019

shall be deemed to have occurred in a county if imposing the

1020

surtax when:

1021

(a)1. The retail sale of a modular or manufactured home,

1022

not including a mobile home, occurs in the county where the home

1023

is delivered. The sale includes an item of tangible personal

1024

property, a service, or tangible personal property representing a

1025

service, and the item of tangible personal property, the service,

1026

or the tangible personal property representing the service is

1027

delivered within the county. If there is no reasonable evidence

1028

of delivery of a service, the sale of a service is deemed to

1029

occur in the county in which the purchaser accepts the bill of

1030

sale.

1031

(b)2. The retail sale, excluding a lease or rental, of a

1032

motor vehicle that does not qualify as transportation equipment

1033

or a The sale of any motor vehicle or mobile home of a class or

1034

type that which is required to be registered in this state or in

1035

any other state occurs shall be deemed to have occurred only in

1036

the county identified as the residence address of the purchaser

1037

on the registration or title document for the such property.

1038

1039

county in which the real property is located.

1040

(d) A transient rental transaction occurs in the county in

1041

which the rental property is located.

1042

(e)(b) The event for which an Admission for an event is

1043

charged is located in the county in which the event is held.

1044

1045

county.

1046

(f) A transaction made from a coin-operated amusement

1047

machine or vending machine occurs in the county in which the

1048

machine is located.

1049

(g) A florist taking the original order to sell tangible

1050

personal property is located in the county in which the order

1051

occurs.

1052

(h) The retail sale, excluding the lease or rental, of

1053

aircraft that does not qualify as transportation equipment, or a

1054

boat of a class or type that is required to be registered,

1055

licensed, titled, or documented in this state or by the Federal

1056

Government occurs in the county in which the aircraft or boat is

1057

delivered.

1058

(i)(d)1. The use user of any aircraft or boat of a class or

1059

type that which is required to be registered, licensed, titled,

1060

or documented in this state or by the Federal United States

1061

Government imported into the county for use, consumption,

1062

distribution, or storage to be used or consumed occurs in the

1063

county in which the user is located in the county.

1064

2. However, it is shall be presumed that such items used

1065

outside the county for 6 months or longer before being imported

1066

into the county were not purchased for use in the county, except

1067

as provided in s. 212.06(8)(b).

1068

3. This paragraph does not apply to the use or consumption

1069

of items upon which a like tax of equal or greater amount has

1070

been lawfully imposed and paid outside the county.

1071

(j)(e) The purchase purchaser of a any motor vehicle or

1072

mobile home of a class or type that which is required to be

1073

registered in this state occurs in the county identified as the

1074

residence of the purchaser is a resident of the taxing county as

1075

determined by the address appearing on or to be reflected on the

1076

registration document for the such property.

1077

(k)(f)1. The use, consumption, distribution, or storage of

1078

a Any motor vehicle or mobile home of a class or type that which

1079

is required to be registered in this state and that is imported

1080

from another state occurs in the county to which it is imported

1081

into the taxing county by a user residing therein for the purpose

1082

of use, consumption, distribution, or storage in the taxing

1083

county.

1084

2. However, it is shall be presumed that such items used

1085

outside the taxing county for 6 months or longer before being

1086

imported into the county were not purchased for use in the

1087

county.

1088

(g) The real property which is leased or rented is located

1089

in the county.

1090

(h) The transient rental transaction occurs in the county.

1091

(i) The delivery of any aircraft or boat of a class or type

1092

which is required to be registered, licensed, titled, or

1093

documented in this state or by the United States Government is to

1094

a location in the county. However, this paragraph does not apply

1095

to the use or consumption of items upon which a like tax of equal

1096

or greater amount has been lawfully imposed and paid outside the

1097

county.

1098

(l)(j) The dealer owing a use tax on purchases or leases is

1099

located in the county.

1100

(k) The delivery of tangible personal property other than

1101

that described in paragraph (d), paragraph (e), or paragraph (f)

1102

is made to a location outside the county, but the property is

1103

brought into the county within 6 months after delivery, in which

1104

event, the owner must pay the surtax as a use tax.

1105

(l) The coin-operated amusement or vending machine is

1106

located in the county.

1107

(m) The florist taking the original order to sell tangible

1108

personal property is located in the county, notwithstanding any

1109

other provision of this section.

1110

(4)(a) The department shall administer, collect, and

1111

enforce a discretionary surtax the tax authorized under s.

1112

212.055 pursuant to the same procedures used in the

1113

administration, collection, and enforcement of the general state

1114

sales tax imposed under the provisions of this chapter, except as

1115

provided in this section. The provisions of this chapter

1116

regarding interest and penalties on delinquent taxes shall also

1117

apply to the surtax. Discretionary sales surtaxes may shall not

1118

be included in the computation of estimated taxes pursuant to s.

1119

212.11. Notwithstanding any other provision of law, a dealer need

1120

not separately state the amount of the surtax does not need to be

1121

separately stated on the charge ticket, sales slip, invoice, or

1122

other tangible evidence of sale. For the purposes of this section

1123

and s. 212.055, the "proceeds" of a any surtax means all funds

1124

collected and received by the department pursuant to a specific

1125

authorization and levy under s. 212.055, including any interest

1126

and penalties on delinquent surtaxes.

1127

(a)(b) The proceeds of a discretionary sales surtax

1128

collected by the selling dealer located in a county that which

1129

imposes the surtax shall be returned, less the cost of

1130

administration, to the county where the selling dealer is

1131

located. The proceeds shall be transferred to the Discretionary

1132

Sales Surtax Clearing Trust Fund. A separate account shall be

1133

established in the such trust fund for each county imposing a

1134

discretionary surtax. The amount deducted for the costs of

1135

administration may shall not exceed 3 percent of the total

1136

revenue generated for all counties levying a discretionary surtax

1137

authorized in s. 212.055. The amount deducted for the costs of

1138

administration shall be used only for those costs that which are

1139

solely and directly attributable to the surtax. The total cost of

1140

administration shall be prorated among those counties levying the

1141

surtax on the basis of the amount collected for a particular

1142

county to the total amount collected for all counties. By No

1143

later than March 1 of each year, the department shall submit a

1144

written report that which details the expenses and amounts

1145

deducted for the costs of administration to the President of the

1146

Senate, the Speaker of the House of Representatives, and the

1147

governing authority of each county levying a surtax. The

1148

department shall distribute the moneys in the trust fund each

1149

month to the appropriate counties pursuant to, unless otherwise

1150

provided in s. 212.055.

1151

(b)(c)1. A Any dealer located in a county that does not

1152

impose a discretionary sales surtax but who collects the surtax

1153

due to sales of tangible personal property or services delivered

1154

outside the county shall remit monthly the proceeds of the surtax

1155

to the department to be deposited into an account in the

1156

Discretionary Sales Surtax Clearing Trust Fund which is separate

1157

from the county surtax collection accounts. The department shall

1158

distribute funds in this account using a distribution factor

1159

determined for each county that levies a surtax and multiplied by

1160

the amount of funds in the account and available for

1161

distribution.

1162

1. The distribution factor for each county equals the

1163

product of:

1164

a. The county's latest official population determined

1165

pursuant to s. 186.901;

1166

b. The county's rate of surtax; and

1167

c. The number of months the county has levied a surtax

1168

during the most recent distribution period;

1169

1170

divided by the sum of all such products of the counties levying

1171

the surtax during the most recent distribution period.

1172

2. The department shall compute distribution factors for

1173

eligible counties once each quarter and make appropriate

1174

quarterly distributions.

1175

3. A county that fails to timely provide the information

1176

required by this section to the department authorizes the

1177

department, by such action, to use the best information available

1178

to it in distributing surtax revenues to the county. If this

1179

information is unavailable to the department, the department may

1180

partially or entirely disqualify the county from receiving surtax

1181

revenues under this paragraph. A county that fails to provide

1182

timely information waives its right to challenge the department's

1183

determination of the county's share, if any, of revenues provided

1184

under this paragraph.

1185

(5) No discretionary sales surtax or increase or decrease

1186

in the rate of any discretionary sales surtax shall take effect

1187

on a date other than January 1. No discretionary sales surtax

1188

shall terminate on a day other than December 31.

1189

(5)(6) The governing body of a any county levying a

1190

discretionary sales surtax shall enact an ordinance levying the

1191

surtax in accordance with the procedures described in s.

1192

125.66(2).

1193

(6)(7)(a) An adoption, repeal, or rate change of a

1194

discretionary surtax by the governing body of a any county

1195

levying a discretionary sales surtax or the school board of a any

1196

county levying the school capital outlay surtax authorized by s.

1197

212.055(6) is effective on April 1.

1198

(a) A county or school board must shall notify the

1199

department within 10 days after final adoption by ordinance or

1200

referendum of an adoption, repeal, imposition, termination, or

1201

rate change of the surtax, but no later than November 16

1202

immediately preceding prior to the effective date. The notice

1203

must specify the time period during which the surtax will be in

1204

effect and the rate and must include a copy of the ordinance and

1205

such other information as the department requires by rule.

1206

Failure to timely provide such notification to the department

1207

shall result in the delay of the effective date for a period of 1

1208

year.

1209

(b) A county or school board must also notify the

1210

department In addition to the notification required by paragraph

1211

(a), the governing body of any county proposing to levy a

1212

discretionary sales surtax or the school board of any county

1213

proposing to levy the school capital outlay surtax authorized by

1214

s. 212.055(6) shall notify the department by October 1 if the

1215

referendum or consideration of the ordinance that would result in

1216

imposition, termination, or rate change of the surtax is

1217

scheduled to occur on or after October 1 of that year. Failure to

1218

timely provide such notification to the department shall result

1219

in the delay of the effective date for a period of 1 year.

1220

1221

repeal, or change to affected sellers by December 1 immediately

1222

preceding the effective date.

1223

(d) A surtax may be terminated only on April 1. A surtax

1224

imposed before January 1, 2009, for which an ordinance provides a

1225

different termination date terminates on April 1 following the

1226

termination date established in the ordinance.

1227

(7)(8) With respect to a any motor vehicle or mobile home

1228

of a class or type which is required to be registered in this

1229

state, the tax due on a transaction occurring in the taxing

1230

county as herein provided shall be collected from the purchaser

1231

or user incident to the titling and registration of the such

1232

property, irrespective of whether such titling or registration

1233

occurs in the taxing county.

1234

(8) For the purpose of the state in providing and

1235

maintaining a database of all sales and use tax rates for all

1236

local taxing jurisdictions in accordance with the Streamlined

1237

Sales and Use Tax Agreement under s. 213.256, the provisions of

1238

s. 202.22(2) apply.

1239

(a) A seller or certified service provider who collects and

1240

remits the state and local tax imposed by this chapter is held

1241

harmless from tax, interest, and penalties due solely as a result

1242

of relying on erroneous data on tax rates, boundaries, or taxing

1243

jurisdiction assignments provided by the state if the seller or

1244

certified service provider exercises due diligence in applying

1245

one or more of the following methods for determining the taxing

1246

jurisdiction and tax rate for a transaction:

1247

1. Employing an electronic database provided by the

1248

department under s. 202.22(2); or

1249

2. Employing a database that has been approved by the

1250

county governing board and developed by a seller or certified

1251

service provider.

1252

(b) If a seller or certified service provider does not use

1253

one of the methods specified in paragraph (a), the seller or

1254

certified service provider may be held liable to the department

1255

for tax, interest, and penalties that are due for charging and

1256

collecting the incorrect amount of tax.

1257

Section 8. Section 212.06, Florida Statutes, is amended to

1258

read:

1259

212.06 Sales, storage, use tax; transaction location;

1260

collectible from dealers; "dealer" defined; dealers to collect

1261

from purchasers; mail order sales; legislative intent as to scope

1262

of tax.--

1263

(1)(a) The aforesaid tax at the rate of 6 percent of the

1264

retail sales price as of the moment of sale, 6 percent of the

1265

cost price as of the moment of purchase, or 6 percent of the cost

1266

price as of the moment of commingling with the general mass of

1267

property in this state, as the case may be, shall be collectible

1268

from all dealers as herein defined on the sale at retail, the

1269

use, the consumption, the distribution, and the storage for use

1270

or consumption in this state of tangible personal property or

1271

services taxable under this chapter. The full amount of the tax

1272

on a credit sale, installment sale, or sale made on any kind of

1273

deferred payment plan is shall be due at the moment of the

1274

transaction in the same manner as on a cash sale.

1275

(b) Except as otherwise provided, any person who

1276

manufactures, produces, compounds, processes, or fabricates in

1277

any manner tangible personal property for his or her own use

1278

shall pay a tax upon the cost of the product manufactured,

1279

produced, compounded, processed, or fabricated without any

1280

deduction for therefrom on account of the cost of material used,

1281

labor or service costs, or transportation charges,

1282

notwithstanding the provisions of s. 212.02 defining "cost

1283

price." However, the tax may levied under this paragraph shall

1284

not be imposed upon any person who manufactures or produces

1285

electrical power or energy, steam energy, or other energy at a

1286

single location, if the when such power or energy is used

1287

directly and exclusively at that such location, or at other

1288

locations if the energy is transferred through facilities of the

1289

owner in the operation of machinery or equipment that is used to

1290

manufacture, process, compound, produce, fabricate, or prepare

1291

for shipment tangible personal property for sale or to operate

1292

pollution control equipment, maintenance equipment, or monitoring

1293

or control equipment used in such operations. The manufacture or

1294

production of electrical power or energy that is used for space

1295

heating, lighting, office equipment, or air-conditioning or any

1296

other nonmanufacturing, nonprocessing, noncompounding,

1297

nonproducing, nonfabricating, or nonshipping activity is taxable.

1298

Electrical power or energy consumed or dissipated in the

1299

transmission or distribution of electrical power or energy for

1300

resale is also not taxable. Fabrication labor is shall not be

1301

taxable if when a person is using his or her own equipment and

1302

personnel, for his or her own account, as a producer,

1303

subproducer, or coproducer of a qualified motion picture. For

1304

purposes of this chapter, the term "qualified motion picture"

1305

means all or any part of a series of related images, either on

1306

film, tape, or other embodiment, including, but not limited to,

1307

all items comprising part of the original work and film-related

1308

products derived therefrom as well as duplicates and prints

1309

thereof and all sound recordings created to accompany a motion

1310

picture, which is produced, adapted, or altered for exploitation

1311

in, on, or through any medium or device and at any location,

1312

primarily for entertainment, commercial, industrial, or

1313

educational purposes. This exemption for fabrication labor

1314

associated with production of a qualified motion picture inures

1315

will inure to the taxpayer upon presentation of the certificate

1316

of exemption issued to the taxpayer under the provisions of s.

1317

288.1258. A person who manufactures factory-built buildings for

1318

his or her own use in the performance of contracts for the

1319

construction or improvement of real property shall pay a tax only

1320

upon the person's cost price of items used in the manufacture of

1321

the such buildings.

1322

1323

use tax on asphalt manufactured for one's own use shall be

1324

calculated with respect to paragraph (b) only upon the cost of

1325

materials that which become a component part or that which are an

1326

ingredient of the finished asphalt and upon the cost of the

1327

transportation of the such components and ingredients. In

1328

addition, an indexed tax of 38 cents per ton of such manufactured

1329

asphalt is shall be due at the same time and in the same manner

1330

as taxes due under pursuant to paragraph (b).

1331

1. Beginning July 1, 1989, the indexed tax must shall be

1332

adjusted each July 1 to an amount, rounded to the nearest cent,

1333

equal to the product of 38 cents multiplied by a fraction, the

1334

numerator of which is the annual average of the "materials and

1335

components for construction" series of the producer price index,

1336

as calculated and published by the United States Department of

1337

Labor, Bureau of Statistics, for the previous calendar year, and

1338

the denominator of which is the annual average of that said

1339

series for calendar year 1988.

1340

2.a. Beginning July 1, 1999, the indexed tax imposed by

1341

this paragraph on manufactured asphalt which is used for a any

1342

federal, state, or local government public works project shall be

1343

reduced by 20 percent.

1344

3.b. Beginning July 1, 2000, the indexed tax imposed by

1345

this paragraph on manufactured asphalt which is used for a any

1346

federal, state, or local government public works project shall be

1347

reduced by 40 percent.

1348

(d) For purposes of paragraph (b), the department may

1349

establish a cost price amount for industry groups that

1350

manufacture, produce, compound, process, or fabricate tangible

1351

personal property for their own use in the performance of

1352

contracts for improvements to real property. The Such cost price

1353

amount must be established as a percentage, rounded to the

1354

nearest whole number, of the total contract price charged for the

1355

improvement. The cost price percentages established must be

1356

adopted by rule pursuant to the procedures provided in s. 120.54,

1357

upon petition of a majority of the members of an industry group

1358

or by a statewide association that represents the such industry

1359

group, and must be based on a reasonable estimate of average

1360

costs incurred by members of the petitioning industry group. The

1361

department shall is required to adopt a cost price percentage

1362

only if sufficient information is available to determine such

1363

percentage. The information considered by the department to

1364

establish the cost price percentage must be that set forth in the

1365

petition or that which is otherwise be made available to the

1366

department. A Any cost price percentage so established shall must

1367

be made available only by election of a member of the industry

1368

group for which the percentage was established and applies may

1369

apply only to the such periods or contracts for which the

1370

election is made. The election must be made by the taxpayer by

1371

timely accruing and remitting tax on the contract using the

1372

established percentage figure. If the taxpayer does not timely

1373

accrue and remit the use tax due for a contract using the

1374

percentage figure, the taxpayer may not later use this method of

1375

calculating the use tax due for that contract. Taxpayers must

1376

maintain adequate records showing the accrual of tax using the

1377

percentage figure on total contract price. A Any cost price so

1378

established must remain available for use for a period of at

1379

least 5 years from the date of its adoption and must be reviewed

1380

and be subject to adjustment by the department no more frequently

1381

than at 5-year intervals. The provisions of this paragraph are

1382

not available to persons subject to paragraph (c).

1383

(e)1. Notwithstanding any other provision of this chapter,

1384

tax may shall not be imposed on a any vessel registered under s.

1385

328.52 by a vessel dealer or vessel manufacturer and with respect

1386

to a vessel used solely for demonstration, sales promotional, or

1387

testing purposes. The term "promotional purposes" includes shall

1388

include, but is not be limited to, participation in fishing

1389

tournaments. For the purposes of this paragraph, "promotional

1390

purposes" means the entry of the vessel in a marine-related event

1391

where prospective purchasers would be in attendance, where the

1392

vessel is entered in the name of the dealer or manufacturer, and

1393

where the vessel is clearly marked as for sale, on which vessel

1394

the name of the dealer or manufacturer is clearly displayed on

1395

the vessel, and the which vessel has never been transferred into

1396

the dealer's or manufacturer's accounting books from an inventory

1397

item to a capital asset for depreciation purposes.

1398

1.2. The provisions of this paragraph do not apply to a any

1399

vessel when used for transporting persons or goods for

1400

compensation; when offered, let, or rented to another for

1401

consideration; when offered for rent or hire as a means of

1402

transportation for compensation; or when offered or used to

1403

provide transportation for persons solicited through personal

1404

contact or through advertisement on a "share expense" basis.

1405

2.3. Notwithstanding any other provision of this chapter,

1406

tax may not be imposed on a any vessel imported into this state

1407

for the sole purpose of being offered for sale at retail by a

1408

yacht broker or yacht dealer registered in this state if the

1409

vessel remains under the care, custody, and control of the

1410

registered broker or dealer and the owner of the vessel does not

1411

make personal use of the vessel during that time. The provisions

1412

of this chapter govern the taxability of any sale or use of the

1413

vessel subsequent to its importation under this provision.

1414

(2) The provisions of this subsection shall be used to

1415

determine the location where a transaction occurs for purposes of

1416

applying the tax imposed by this chapter.

1417

(a) For purposes of this subsection, the term:

1418

1. "Receive" and "receipt" means taking possession of

1419

tangible personal property; making first use of services; or

1420

taking possession or making first use of digital goods, whichever

1421

occurs first. The terms do not include possession by a shipping

1422

company on behalf of the purchaser.

1423

2. "Product" means tangible personal property, a digital

1424

good, or a service.

1425

(b) The retail sale of a product, excluding a lease or

1426

rental, shall be sourced as follows:

1427

1. At a business location of the seller, if the product is

1428

received by the purchaser at that location.

1429

2. If subparagraph 1. does not apply, at the location the

1430

product is received by the purchaser or the purchaser's donee, as

1431

designated by the purchaser, including the location indicated by

1432

delivery instructions known to the seller.

1433

3. If subparagraphs 1. and 2. do not apply, at the

1434

purchaser's address, which is available from the seller's

1435

business records maintained in the ordinary course of business,

1436

if use of this address does not constitute bad faith.

1437

4. If subparagraphs 1., 2., and 3. do not apply, at the

1438

purchaser's address obtained during the consummation of the sale,

1439

including the address of a purchaser's payment instrument, if no

1440

other address is available, if use of this address does not

1441

constitute bad faith.

1442

5. If subparagraphs 1., 2., 3., and 4. do not apply,

1443

including when the seller is without sufficient information to

1444

apply the previous paragraphs, the address from which the

1445

tangible personal property was shipped, the digital good or the

1446

computer software delivered electronically was first available

1447

for transmission by the seller, or the service was provided,

1448

disregarding a location that merely provided the digital transfer

1449

of the product sold.

1450

1451

other than property identified in paragraphs (d) and (e), shall

1452

be sourced as follows:

1453

1. For a lease or rental that requires recurring periodic

1454

payments, the first payment is deemed to take place in accordance

1455

with paragraph (b) notwithstanding the exclusion of a lease or

1456

rental. Subsequent periodic payments are deemed to have occurred

1457

at the primary property location for each period covered by the

1458

payment. The primary property location is the address for the

1459

property provided by the lessee, which is available to the lessor

1460

from its records maintained in the ordinary course of business,

1461

if use of this address does not constitute bad faith. The

1462

property location is not altered by intermittent use of the

1463

property at different locations, such as the use of business

1464

property that accompanies employees on business trips and service

1465

calls.

1466

2. For a lease or rental that does not require recurring

1467

periodic payments, the payment is deemed to take place in

1468

accordance with paragraph (b) notwithstanding the exclusion of a

1469

lease or rental.

1470

3. This paragraph does not affect the imposition or

1471

computation of sales or use tax on leases or rentals based on a

1472

lump sum or accelerated basis, or on the acquisition of property

1473

for lease.

1474

(d) The lease or rental of a motor vehicle or aircraft that

1475

does not qualify as transportation equipment shall be sourced as

1476

follows:

1477

1. For a lease or rental that requires recurring periodic

1478

payments, each periodic payment is deemed to take place at the

1479

primary property location. The primary property location is the

1480

address for the property provided by the lessee, which is

1481

available to the lessor from its records maintained in the

1482

ordinary course of business, if use of this address does not

1483

constitute bad faith. This location may not be altered by

1484

intermittent use at different locations.

1485

2. For a lease or rental that does not require recurring

1486

periodic payments, the payment is deemed to take place in

1487

accordance with paragraph (b) notwithstanding the exclusion of a

1488

lease or rental.

1489

3. This paragraph does not affect the imposition or

1490

computation of sales or use taxes on leases or rentals based on a

1491

lump-sum or accelerated basis, or on the acquisition of property

1492

for lease.

1493

(e) The retail sale, including lease or rental, of

1494

transportation equipment shall be deemed to take place in

1495

accordance with paragraph (b) notwithstanding the exclusion of a

1496

lease or rental.

1497

(f) This section does not apply to sales or use taxes

1498

levied on:

1499

1. The retail sale or transfer of a boat, modular home,

1500

manufactured home, or mobile home.

1501

2. The retail sale, excluding a lease or rental, of a motor

1502

vehicle or aircraft that does not qualify as transportation

1503

equipment. The lease or rental of these items shall be deemed to

1504

have occurred in accordance with paragraph (d).

1505

3. The retail sale of tangible personal property by a

1506

florist.

1507

1508

Such retail sales are deemed to take place at the location

1509

determined under s. 212.054(3).

1510

(a) The term "dealer," as used in this chapter, includes

1511

every person who manufactures or produces tangible personal

1512

property for sale at retail; for use, consumption, or

1513

distribution; or for storage to be used or consumed in this

1514

state.

1515

(b) The term "dealer" is further defined to mean every

1516

person, as used in this chapter, who imports, or causes to be

1517

imported, tangible personal property from any state or foreign

1518

country for sale at retail; for use, consumption, or

1519

distribution; or for storage to be used or consumed in this

1520

state.

1521

1522

person, as used in this chapter, who sells at retail or who

1523

offers for sale at retail, or who has in his or her possession

1524

for sale at retail; or for use, consumption, or distribution; or

1525

for storage to be used or consumed in this state, tangible

1526

personal property as defined herein, including a retailer who

1527

transacts a mail order sale.

1528

(d) The term "dealer" is further defined to mean any person

1529

who has sold at retail; or used, or consumed, or distributed; or

1530

stored for use or consumption in this state, tangible personal

1531

property and who cannot prove that the tax levied by this chapter

1532

has been paid on the sale at retail, the use, the consumption,

1533

the distribution, or the storage of such tangible personal

1534

property. However, the term "dealer" does not mean a person who

1535

is not a "dealer" under the definition of any other paragraph of

1536

this subsection and whose only owned or leased property

1537

(including property owned or leased by an affiliate) in this

1538

state is located at the premises of a printer with which it has

1539

contracted for printing, if such property consists of the final

1540

printed product, property which becomes a part of the final

1541

printed product, or property from which the printed product is

1542

produced.

1543

(e) The term "dealer" is further defined to mean any

1544

person, as used in this chapter, who leases or rents tangible

1545

personal property, as defined in this chapter, for a

1546

consideration, permitting the use or possession of such property

1547

without transferring title thereto, except as expressly provided

1548

for to the contrary herein.

1549

(f) The term "dealer" is further defined to mean any

1550

person, as used in this chapter, who maintains or has within this

1551

state, directly or by a subsidiary, an office, distributing

1552

house, salesroom, or house, warehouse, or other place of

1553

business.

1554

(g) "Dealer" also means and includes every person who

1555

solicits business either by direct representatives, indirect

1556

representatives, or manufacturers' agents; by distribution of

1557

catalogs or other advertising matter; or by any other means

1558

whatsoever, and by reason thereof receives orders for tangible

1559

personal property from consumers for use, consumption,

1560

distribution, and storage for use or consumption in the state;

1561

such dealer shall collect the tax imposed by this chapter from

1562

the purchaser, and no action, either in law or in equity, on a

1563

sale or transaction as provided by the terms of this chapter may

1564

be had in this state by any such dealer unless it is

1565

affirmatively shown that the provisions of this chapter have been

1566

fully complied with.

1567

(h) "Dealer" also means and includes every person who, as a

1568

representative, agent, or solicitor of an out-of-state principal

1569

or principals, solicits, receives, and accepts orders from

1570

consumers in the state for future delivery and whose principal

1571

refuses to register as a dealer.

1572

(i) "Dealer" also means and includes the state, county,

1573

municipality, any political subdivision, agency, bureau or

1574

department, or other state or local governmental instrumentality.

1575

(j) The term "dealer" is further defined to mean any person

1576

who leases, or grants a license to use, occupy, or enter upon,

1577

living quarters, sleeping or housekeeping accommodations in

1578

hotels, apartment houses, roominghouses, tourist or trailer

1579

camps, real property, space or spaces in parking lots or garages

1580

for motor vehicles, docking or storage space or spaces for boats

1581

in boat docks or marinas, or tie-down or storage space or spaces

1582

for aircraft at airports. The term "dealer" also means any person

1583

who has leased, occupied, or used or was entitled to use any

1584

living quarters, sleeping or housekeeping accommodations in

1585

hotels, apartment houses, roominghouses, tourist or trailer

1586

camps, real property, space or spaces in parking lots or garages

1587

for motor vehicles or docking or storage space or spaces for

1588

boats in boat docks or marinas, or who has purchased

1589

communication services or electric power or energy, and who

1590

cannot prove that the tax levied by this chapter has been paid to

1591

the vendor or lessor on any such transactions. The term "dealer"

1592

does not include any person who leases, lets, rents, or grants a

1593

license to use, occupy, or enter upon any living quarters,

1594

sleeping quarters, or housekeeping accommodations in apartment

1595

houses, roominghouses, tourist camps, or trailer camps, and who

1596

exclusively enters into a bona fide written agreement for

1597

continuous residence for longer than 6 months in duration with

1598

any person who leases, lets, rents, or is granted a license to

1599

use such property.

1600

(k) "Dealer" also means any person who sells, provides, or

1601

performs a service taxable under this chapter. "Dealer" also

1602

means any person who purchases, uses, or consumes a service

1603

taxable under this chapter who cannot prove that the tax levied

1604

by this chapter has been paid to the seller of the taxable

1605

service.

1606

(l) "Dealer" also means any person who solicits, offers,

1607

provides, enters into, issues, or delivers any service warranty

1608

taxable under this chapter, or who receives, on behalf of such a

1609

person, any consideration from a service warranty holder.

1610

(3)(a) Except as provided in paragraphs (a) and paragraph

1611

(b), every dealer making retail sales, whether within or outside

1612

the state, of tangible personal property for distribution,

1613

storage, or use or other consumption, in this state, shall, at

1614

the time of making sales, collect the tax imposed by this chapter

1615

from the purchaser.

1616

(a) A business purchaser who is not a holder of a direct-

1617

pay permit and who knows at the time of purchase of a digital

1618

good, computer software delivered electronically, or a service

1619

that the digital good, computer software, or service is

1620

concurrently available for use in more than one jurisdiction

1621

shall deliver to the dealer a multiple-points-of-use (MPU)

1622

exemption form at the time of purchase.

1623

1. Upon receipt of the MPU exemption form, the seller is

1624

relieved of all obligation to collect, pay, or remit the

1625

applicable tax, and the purchaser is obligated to collect, pay,

1626

or remit the applicable tax on a direct-pay basis.

1627

2. A purchaser delivering the MPU exemption form may use

1628

any reasonable, consistent, and uniform method of apportioning

1629

the applicable tax which is supported by the purchaser's business

1630

records as they exist at the time of the sale.

1631

3. The MPU exemption form remains in effect for all future

1632

sales by the seller to the purchaser, except as to the subsequent

1633

sale's specific apportionment, which is governed by subparagraph

1634

2. and the facts existing at the time of the sale, until the MPU

1635

exemption form is revoked in writing.

1636

4. A holder of a direct-pay permit is not required to

1637

deliver an MPU exemption form to the seller and must comply with

1638

subparagraph 2. in apportioning the tax due on a digital good or

1639

a service that is concurrently available for use in more than one

1640

jurisdiction.

1641

(b)1. A purchaser of direct mail who is not a holder of a

1642

direct-pay permit shall provide to the seller in conjunction with

1643

the purchase a direct-mail form or information to show the

1644

jurisdictions to which the direct mail is delivered to

1645

recipients.

1646

1. Upon receipt of the direct-mail form, the seller is

1647

relieved of all obligations to collect, pay, or remit the

1648

applicable tax, and the purchaser is obligated to pay or remit

1649

the applicable tax on a direct-pay basis. A direct-mail form

1650

remains in effect for all future sales of direct mail by the

1651

seller to the purchaser until it is revoked in writing.

1652

2. Upon receipt of information from the purchaser showing

1653

the jurisdictions to which the direct mail is delivered to

1654

recipients, the seller shall collect the tax according to the

1655

delivery information provided by the purchaser. In the absence of

1656

bad faith, the seller is relieved of any further obligation to

1657

collect tax on any transaction for which the seller has collected

1658

tax pursuant to the delivery information provided by the

1659

purchaser.

1660

3. If the purchaser of direct mail does not have a direct-

1661

pay permit and does not provide the seller with a direct-mail

1662

form or delivery information as required by this paragraph, the

1663

seller shall collect the tax according to subparagraph (2)(b)5.

1664

This subparagraph does not limit a purchaser's obligation for

1665

sales or use tax to any state to which the direct mail is

1666

delivered.

1667

4. If a purchaser of direct mail provides the seller with

1668

documentation of direct-pay authority, the purchaser is not

1669

required to provide a direct-mail form or delivery information to

1670

the seller. A purchaser of printed materials shall have sole

1671

responsibility for the taxes imposed by this chapter on those

1672

materials when the printer of the materials delivers them to the

1673

United States Postal Service for mailing to persons other than

1674

the purchaser located within and outside this state. Printers of

1675

materials delivered by mail to persons other than the purchaser

1676

located within and outside this state shall have no obligation or

1677

responsibility for the payment or collection of any taxes imposed

1678

under this chapter on those materials. However, printers are

1679

obligated to collect the taxes imposed by this chapter on printed

1680

materials when all, or substantially all, of the materials will

1681

be mailed to persons located within this state. For purposes of

1682

the printer's tax collection obligation, there is a rebuttable

1683

presumption that all materials printed at a facility are mailed

1684

to persons located within the same state as that in which the

1685

facility is located. A certificate provided by the purchaser to

1686

the printer concerning the delivery of the printed materials for

1687

that purchase or all purchases shall be sufficient for purposes

1688

of rebutting the presumption created herein.

1689

5.2. The department of Revenue is authorized to adopt rules

1690

and forms to administer implement the provisions of this

1691

paragraph.

1692

(4) On all tangible personal property imported or caused to

1693

be imported from other states, territories, the District of

1694

Columbia, or a any foreign country, and used by him or her, the

1695

dealer, as herein defined, shall pay the same tax imposed by this

1696

chapter on all articles of tangible personal property so imported

1697

and used, the same as if the such articles had been sold at

1698

retail for use or consumption in this state. For the purposes of

1699

this chapter, the use, or consumption, or distribution, or

1700

storage to be used or consumed in this state of tangible personal

1701

property shall each be equivalent to a sale at retail, and the

1702

tax shall thereupon immediately levy and be collected in the

1703

manner provided herein, provided that there is there shall be no

1704

duplication of the tax in any event.

1705

(5)(a)1. Except as provided in subparagraph 2., it is not

1706

the intention of this chapter to levy a tax upon tangible

1707

personal property imported, produced, or manufactured in this

1708

state for export, provided that tangible personal property may

1709

not be considered as being imported, produced, or manufactured

1710

for export unless the importer, producer, or manufacturer

1711

delivers the same to a licensed exporter for exporting or to a

1712

common carrier for shipment outside the state or mails the same

1713

by United States mail to a destination outside the state; or, for

1714

in the case of aircraft being exported under their own power to a

1715

destination outside the continental limits of the United States,

1716

by submission to the department of a duly signed and validated

1717

United States customs declaration, showing the departure of the

1718

aircraft from the continental United States; and further with

1719

respect to aircraft, submission to the department of the canceled

1720

United States registry of said aircraft; or for in the case of

1721

parts and equipment installed on aircraft of foreign registry, by

1722

submission to the department of documentation, as the extent of

1723

which shall be provided by rule, showing the departure of the

1724

aircraft from the continental United States. It is also not; nor

1725

is it the intention of this chapter to levy a tax on any sale

1726

that which the state is prohibited from taxing under the

1727

Constitution or laws of the United States. Every retail sale made

1728

to a person physically present at the time of sale is shall be

1729

presumed to have been delivered in this state.

1730

2.a. Notwithstanding subparagraph 1., a tax is levied on

1731

each sale of tangible personal property to be transported to a

1732

cooperating state as defined in sub-subparagraph c., at the rate

1733

specified in sub-subparagraph d. However, a registered Florida

1734

dealer is not required to collect this tax will be relieved from

1735

the requirements of collecting taxes pursuant to this

1736

subparagraph if the Florida dealer obtains from the purchaser an

1737

affidavit setting forth the purchaser's name, address, state

1738

taxpayer identification number, and a statement that the

1739

purchaser is aware of his or her state's use tax laws, is a

1740

registered dealer in this state Florida or another state, or is

1741

purchasing the tangible personal property for resale, or is

1742

otherwise not required to pay the tax on the transaction. The

1743

department may, by rule, provide a form to be used for this

1744

purpose the purposes set forth herein.

1745

b. For purposes of this subparagraph, "a cooperating state"

1746

is one determined by the executive director of the department to

1747

cooperate satisfactorily with this state in collecting taxes on

1748

mail order sales by meeting. No state shall be so determined

1749

unless it meets all the following minimum requirements:

1750

(I) It levies and collects taxes on mail order sales of

1751

property transported from that state to persons in this state, as

1752

described in s. 212.0596, upon request of the department.

1753

(II) The tax so collected is shall be at the rate specified

1754

in s. 212.05, not including any local option or tourist or

1755

convention development taxes collected pursuant to s. 125.0104 or

1756

this chapter.

1757

(III) The Such state agrees to remit to the department all

1758

taxes so collected no later than 30 days after from the last day

1759

of the calendar quarter following their collection.

1760

(IV) The Such state authorizes the department to audit

1761

dealers within its jurisdiction who make mail order sales that

1762

are the subject of s. 212.0596, or makes arrangements deemed

1763

adequate by the department for auditing them with its own

1764

personnel.

1765

(V) The Such state agrees to provide to the department

1766

records obtained by it from retailers or dealers in the such

1767

state showing delivery of tangible personal property into this

1768

state upon which no sales or use tax has been paid in a manner

1769

similar to that provided in sub-subparagraph g.

1770

c. For purposes of this subparagraph, "sales of tangible

1771

personal property to be transported to a cooperating state" means

1772

a mail order sale sales to a person who is in the cooperating

1773

state at the time the order is executed, from a dealer who

1774

receives that order in this state.

1775

d. The tax levied by sub-subparagraph a. shall be at the

1776

rate at which such a sale would have been taxed pursuant to the

1777

cooperating state's tax laws if consummated in the cooperating

1778

state by a dealer and a purchaser, both of whom were physically

1779

present in that state at the time of the sale.

1780

e. The tax levied by sub-subparagraph a., when collected,

1781

shall be held in the State Treasury in trust for the benefit of

1782

the cooperating state and shall be paid to it at a time agreed

1783

upon between the department, acting for this state, and the

1784

cooperating state or the department or agency designated by it to

1785

act for it; however, the such payment must be made within shall

1786

in no event be made later than 30 days after from the last day of

1787

the calendar quarter after the tax was collected. Funds held in

1788

trust for the benefit of a cooperating state are shall not be

1789

subject to the service charges imposed by s. 215.20.

1790

f. The department may is authorized to perform such acts

1791

and to provide such cooperation to a cooperating state with

1792

reference to the tax levied by sub-subparagraph a. as is required

1793

of the cooperating state by sub-subparagraph b.

1794

g. In furtherance of this subparagraph act, dealers selling

1795

tangible personal property for delivery in another state shall

1796

make available to the department, upon request of the department,

1797

records of all tangible personal property so sold. The Such

1798

records must shall include a description of the property, the

1799

name and address of the purchaser, the name and address of the

1800

person to whom the property was sent, the purchase price of the

1801

property, information regarding whether sales tax was paid in

1802

this state on the purchase price, and such other information as

1803

the department may by rule prescribe.

1804

(b)1. Notwithstanding the provisions of paragraph (a), it

1805

is not the intention of this chapter to levy a tax on the sale of

1806

tangible personal property to a nonresident dealer who does not

1807

hold a Florida sales tax registration if the, provided such

1808

nonresident dealer furnishes the seller with a statement

1809

declaring that the tangible personal property will be transported

1810

outside this state by the nonresident dealer for resale and for

1811

no other purpose.

1812

1. The statement must shall include, but need not be

1813

limited to, the nonresident dealer's name, address, applicable

1814

passport or visa number, arrival-departure card number, and

1815

evidence of authority to do business in the nonresident dealer's

1816

home state or country, such as his or her business name and

1817

address, occupational license number, if applicable, or any other

1818

suitable requirement. The statement must shall be signed by the

1819

nonresident dealer and must shall include the following sentence:

1820

"Under penalties of perjury, I declare that I have read the

1821

foregoing, and the facts alleged are true to the best of my

1822

knowledge and belief."

1823

2. The burden of proof of subparagraph 1. rests with the

1824

seller, who must retain the proper documentation to support the

1825

exempt sale. The exempt transaction is subject to verification by

1826

the department.

1827

1828

not the intention of this chapter to levy a tax on the sale by a

1829

printer to a nonresident print purchaser of material printed by

1830

that printer if for that nonresident print purchaser when the

1831

print purchaser does not furnish to the printer a resale

1832

certificate containing a sales tax registration number but does

1833

furnish to the printer a statement declaring that the such

1834

material will be resold by the nonresident print purchaser.

1835

(6) It is however, the intention of this chapter to levy a

1836

tax on the sale at retail, the use, the consumption, the

1837

distribution, and the storage to be used or consumed in this

1838

state of tangible personal property after it has come to rest in

1839

this state and has become a part of the mass property of this

1840

state.

1841

(7) The provisions of this chapter do not apply in respect

1842

to the use or consumption of tangible personal property or

1843

services, or distribution or storage of tangible personal

1844

property for use or consumption in this state, upon which a like

1845

tax equal to or greater than the amount imposed by this chapter

1846

has been lawfully imposed and paid in another state, territory of

1847

the United States, or the District of Columbia. The proof of

1848

payment of such tax shall be made in accordance with department

1849

according to rules and regulations of the department. If the

1850

amount of tax paid in another state, territory of the United

1851

States, or the District of Columbia is not equal to or greater

1852

than the amount of tax imposed by this chapter, then the dealer

1853

must shall pay the difference to the department an amount

1854

sufficient to make the tax paid in the other state, territory of

1855

the United States, or the District of Columbia and in this state

1856

equal to the amount imposed by this chapter.

1857

(8)(a) Use tax applies will apply and is be due on tangible

1858

personal property imported or caused to be imported into this

1859

state for use, consumption, distribution, or storage to be used

1860

or consumed in this state.; provided, however, that, Except as

1861

provided in paragraph (b), it is shall be presumed that tangible

1862

personal property used in another state, territory of the United

1863

States, or the District of Columbia for 6 months or longer before

1864

being imported into this state was not purchased for use in this

1865

state. The rental or lease of tangible personal property that

1866

which is used or stored in this state is shall be taxable without

1867

regard to its prior use or tax paid on purchase outside this

1868

state.

1869

(b) The presumption that tangible personal property used in

1870

another state, territory of the United States, or the District of

1871

Columbia for 6 months or longer before being imported into this

1872

state was not purchased for use in this state does not apply to a

1873

any boat for which a saltwater vessel fishing license fee is

1874

required to be paid pursuant to s. 372.57(7), either directly or

1875

indirectly, for the purpose of taking, attempting to take, or

1876

possessing any saltwater fish for noncommercial purposes. Use tax

1877

applies shall apply and is be due on such a boat as provided in

1878

this paragraph, and proof of payment of the such tax must be

1879

presented prior to the first such licensure of the boat,

1880

registration of the boat pursuant to chapter 328, and titling of

1881

the boat pursuant to chapter 328.

1882

1. A boat that is first licensed within 1 year after

1883

purchase is shall be subject to use tax on the full amount of the

1884

purchase price.;

1885

2. A boat that is first licensed in the second year after

1886

purchase is shall be subject to use tax on 90 percent of the

1887

purchase price.;

1888

3. A boat that is first licensed in the third year after

1889

purchase is shall be subject to use tax on 80 percent of the

1890

purchase price.;

1891

4. A boat that is first licensed in the fourth year after

1892

purchase is shall be subject to use tax on 70 percent of the

1893

purchase price.;

1894

5. A boat that is first licensed in the fifth year after

1895

purchase is shall be subject to use tax on 60 percent of the

1896

purchase price.; and

1897

6. A boat that is first licensed in the sixth year after

1898

purchase, or later, is shall be subject to use tax on 50 percent

1899

of the purchase price.

1900

7. If the purchaser fails to provide the purchase invoice

1901

on such boat, the fair market value of the boat at the time of

1902

importation into this state shall be used to compute the tax.

1903

(9) The taxes imposed by this chapter do not apply to the

1904

use, sale, or distribution of religious publications, bibles,

1905

hymn books, prayer books, vestments, altar paraphernalia,

1906

sacramental chalices, and similar like church service and

1907

ceremonial raiments and equipment.

1908

(10) A No title certificate may not be issued on any boat,

1909

mobile home, motor vehicle, or other vehicle, or, if a no title

1910

is not required by law, a no license or registration may not be

1911

issued for any boat, mobile home, motor vehicle, or other

1912

vehicle, unless there is filed with the such application for

1913

title certificate, or license, or registration certificate a

1914

receipt, issued by an authorized dealer or a designated agent of

1915

the department of Revenue, evidencing the payment of the tax

1916

imposed by this chapter where the tax same is payable. A

1917

presumption of sales and use tax applicability is created if the

1918

motor vehicle is registered in this state. For the purpose of

1919

enforcing this subsection provision, all county tax collectors

1920

and all persons or firms authorized to sell or issue boat, mobile

1921

home, and motor vehicle licenses are hereby designated agents of

1922

the department and are required to perform such duty in the same

1923

manner and under the same conditions prescribed for their other

1924

duties by the constitution or laws any statute of this state. All

1925

transfers of title to boats, mobile homes, motor vehicles, and

1926

other vehicles are taxable transactions, unless expressly exempt

1927

under this chapter.

1928

(11)(a) Notwithstanding any other provision of this

1929

chapter, the taxes imposed by this chapter may shall not be

1930

imposed on promotional materials that, which are imported,

1931

purchased, sold, used, manufactured, fabricated, processed,

1932

printed, imprinted, assembled, distributed, or stored in this

1933

state, if the promotional materials are subsequently exported

1934

outside this state, and, regardless of whether the exportation

1935

process is continuous and unbroken, a separate consideration is

1936

charged for the material so exported, or the taxpayer keeps,

1937

retains, or exercises any right, power, dominion, or control over

1938

the promotional materials before or for the purpose of

1939

subsequently transporting them outside this state.

1940

(a)(b) As used in this subsection, the term "promotional

1941

materials" means tangible personal property that is given away or

1942

otherwise distributed to promote the sale of a subscription to a

1943

publication; written or printed advertising material, direct mail

1944

literature, correspondence, written solicitations, renewal

1945

notices, and billings for sales connected with or to promote the

1946

sale of a subscription to a publication; and the component parts

1947

of each of these types of promotional materials.

1948

(b)(c) After July 1, 1992, This exemption inures to the

1949

taxpayer only through refund of previously paid taxes or by self-

1950

accruing taxes as provided in s. 212.183 and applies only where

1951

the seller of subscriptions to publications sold in the state:

1952

1. Is registered with the department pursuant to this

1953

chapter; and

1954

2. Remits the taxes imposed by this chapter on such

1955

publications.

1956

(d) This subsection applies retroactively to July 1, 1987.

1957

(12) In lieu of any other facts that which may indicate

1958

commingling, a any boat that which remains in this state for more

1959

than an aggregate of 183 days in any 1-year period, except as

1960

provided in subsection (8) or s. 212.08(7)(t), is shall be

1961

presumed to be commingled with the general mass of property of

1962

this state.

1963

(13) Registered aircraft dealers who purchase aircraft

1964

exclusively for resale and who do not pay sales tax on the

1965

purchase price at the time of purchase must shall pay a use tax

1966

computed on 1 percent of the value of the aircraft each calendar

1967

month that the aircraft is used by the dealer. Payment of the

1968

such tax shall commence in the month during which the aircraft is

1969

first used for any purpose for which income is received by the

1970

dealer. A dealer may pay the sales tax on the purchase of the

1971

aircraft in lieu of the monthly use tax. The value of the

1972

aircraft must shall include its acquisition cost and the cost of

1973

reconditioning that enhances the value of the aircraft and shall

1974

generally be the value shown on the books of the dealer in

1975

accordance with generally accepted accounting principles.

1976

Notwithstanding the payment by the dealer of tax computed on 1

1977

percent of the value of the any aircraft, if the aircraft is

1978

leased or rented, the dealer must shall collect from the customer

1979

and remit the tax that is due on the lease or rental of the

1980

aircraft; such payments do not diminish or offset any use tax due

1981

from the dealer.

1982

(14) For the purpose of determining whether a person is

1983

improving real property, the term:

1984

(a) "Real property" means the land and improvements thereto

1985

and fixtures and is synonymous with the terms "realty" and "real

1986

estate."

1987

(b) "Fixtures" means items that are an accessory to a

1988

building, other structure, or land and that do not lose their

1989

identity as accessories when installed but that do become

1990

permanently attached to realty. However, the term does not

1991

include the following items, whether or not such items are

1992

attached to real property in a permanent manner: property of a

1993

type that is required to be registered, licensed, titled, or

1994

documented by this state or by the United States Government,

1995

including, but not limited to, mobile homes, except mobile homes

1996

assessed as real property, or industrial machinery or equipment.

1997

For purposes of this paragraph, industrial machinery or equipment

1998

is not limited to machinery and equipment used to manufacture,

1999

process, compound, or produce tangible personal property. For an

2000

item to be considered a fixture, it is not necessary that the

2001

owner of the item also own the real property to which it is

2002

attached.

2003

2004

of building, erecting, constructing, altering, improving,

2005

repairing, or maintaining real property.

2006

(14)(15)(a) If When a contractor secures rock, shell, fill

2007

dirt, or similar materials from a location that he or she owns or

2008

leases and uses such materials to fulfill a real property

2009

contract on the property of another person, the contractor is the

2010

ultimate consumer of the such materials and is liable for use tax

2011

thereon. This paragraph does not apply to a person or a

2012

corporation or affiliated group as defined by s. 220.03(1)(b) or

2013

(e) who that secures such materials from a location that he, she,

2014

or it owns for use on his, her, or its own property. The basis

2015

upon which the contractor shall remit the tax is the fair retail

2016

market value determined by establishing either the price he or

2017

she would have to pay for it on the open market or the price he

2018

or she would regularly charge if he or she sold it to other

2019

contractors or users.

2020

(b) If When a contractor does not own or lease the land but

2021

has entered into an agreement to purchase fill dirt, rock, shell,

2022

or similar materials for his or her own use and wherein the

2023

contractor will excavate and remove the material, the taxable

2024

basis includes shall include the cost of the material plus all

2025

costs of clearing, excavating, and removing, including labor and

2026

all other costs incurred by the contractor.

2027

2028

determining the taxable basis on rock, shell, fill dirt, and

2029

similar materials a contractor uses in performing a contract for

2030

the improvement of real property, the taxable basis may be

2031

calculated as the land cost plus all costs of clearing,

2032

excavating, and loading, including labor, power, blasting, and

2033

similar costs.

2034

(d) A tax may not be imposed if No tax is applicable when

2035

the Department of Transportation furnishes without charge the

2036

borrow materials or the pits where materials are to be extracted

2037

for use on a road contract.

2038

(15)(16)(a) Notwithstanding other provisions of this

2039

chapter, the use by the publisher of a newspaper, magazine, or

2040

periodical of copies for his or her own consumption or to be

2041

given away is taxable at the usual retail price thereof, if any,

2042

or at the "cost price."

2043

(b) For the purposes of this subsection, the term "cost

2044

price" means the actual cost of printing of newspapers,

2045

magazines, and other publications, without any deductions for

2046

therefrom on account of the cost of materials used, labor or

2047

services cost, transportation charges, or other direct or

2048

indirect overhead costs that are a part of the printing costs of

2049

the property. However, the cost of labor to manufacture, produce,

2050

compound, process, or fabricate expendable items of tangible

2051

personal property which are directly used by such person in

2052

printing other tangible personal property for sale or for his or

2053

her own use is exempt. Authors' royalties, fees, or salaries,

2054

general overhead, and other costs not directly related to

2055

printing are shall be deemed to be labor associated with

2056

manufacturing, producing, compounding, processing, or fabricating

2057

expendable items.

2058

Section 9. Subsections (1) and (2) and paragraphs (b) and

2059

2060

amended to read:

2061

212.08 Sales, rental, use, consumption, distribution, and

2062

storage tax; specified exemptions.--The sale at retail, the

2063

rental, the use, the consumption, the distribution, and the

2064

storage to be used or consumed in this state of the following are

2065

hereby specifically exempt from the tax imposed by this chapter.

2066

(1) EXEMPTIONS; GENERAL GROCERIES.--

2067

(a) Food and food ingredients products for human

2068

consumption are exempt from the tax imposed by this chapter.

2069

(b) For the purpose of this chapter, as used in this

2070

subsection, the term "food and food ingredients" mean substances,

2071

whether in liquid, concentrated, solid, frozen, dried, or

2072

dehydrated form, which are sold for ingestion or chewing by

2073

humans and are consumed for their taste or nutritional value

2074

products" means edible commodities, whether processed, cooked,

2075

raw, canned, or in any other form, which are generally regarded

2076

as food. This includes, but is not limited to, all of the

2077

following:

2078

1. Cereals and cereal products, baked goods, oleomargarine,

2079

meat and meat products, fish and seafood products, frozen foods

2080

and dinners, poultry, eggs and egg products, vegetables and

2081

vegetable products, fruit and fruit products, spices, salt, sugar

2082

and sugar products, milk and dairy products, and products

2083

intended to be mixed with milk.

2084

2. Natural fruit or vegetable juices or their concentrates

2085

or reconstituted natural concentrated fruit or vegetable juices,

2086

whether frozen or unfrozen, dehydrated, powdered, granulated,

2087

sweetened or unsweetened, seasoned with salt or spice, or

2088

unseasoned; coffee, coffee substitutes, or cocoa; and tea, unless

2089

it is sold in a liquid form.

2090

1.3. Bakery products sold by bakeries, pastry shops, or

2091

like establishments, if sold without eating utensils. The term

2092

"bakery products" includes bread, rolls, buns, biscuits, bagels,

2093

croissants, pastries, doughnuts, danish, cakes, tortes, pies,

2094

tarts, muffins, bars, cookies, and tortillas that do not have

2095

eating facilities.

2096

2. Dietary supplements. The term "dietary supplements"

2097

means any product, other than tobacco, intended to supplement the

2098

diet which contains one or more of the following dietary

2099

ingredients: a vitamin; a mineral; an herb or other botanical; an

2100

amino acid; a dietary substance for use by humans to supplement

2101

the diet by increasing the total dietary intake; or a

2102

concentrate, metabolite, constituent, extract, or combination of

2103

any ingredient described in this subparagraph which is intended

2104

for ingestion in tablet, capsule, powder, softgel, gelcap, or

2105

liquid form or, if not intended for ingestion in such form, is

2106

not represented as conventional food and is not represented for

2107

use as a sole item of a meal or of the diet, and which is

2108

required to be labeled as a dietary supplement, identifiable by

2109

the "supplemental facts" box found on the label and as required

2110

pursuant to 21 C.F.R. s. 101.36.

2111

2112

apply:

2113

1. When the food products are sold as meals for consumption

2114

on or off the premises of the dealer.

2115

2. When the food products are furnished, prepared, or

2116

served for consumption at tables, chairs, or counters or from

2117

trays, glasses, dishes, or other tableware, whether provided by

2118

the dealer or by a person with whom the dealer contracts to

2119

furnish, prepare, or serve food products to others.

2120

3. When the food products are ordinarily sold for immediate

2121

consumption on the seller's premises or near a location at which

2122

parking facilities are provided primarily for the use of patrons

2123

in consuming the products purchased at the location, even though

2124

such products are sold on a "take out" or "to go" order and are

2125

actually packaged or wrapped and taken from the premises of the

2126

dealer.

2127

4. To sandwiches sold ready for immediate consumption on or

2128

off the seller's premises.

2129

5. When the food products are sold ready for immediate

2130

consumption within a place, the entrance to which is subject to

2131

an admission charge.

2132

1.6. If When the food and food ingredients products are

2133

sold as hot prepared food products. The term "prepared food"

2134

means food sold in a heated state or heated by the seller; two or

2135

more food ingredients mixed or combined by the seller for sale as

2136

a single item; or food sold with eating utensils provided by the

2137

seller including plates, knives, forks, spoons, glasses, cups,

2138

napkins, or straws. A plate does not include a container or

2139

packaging used to transport the food. Prepared food does not

2140

include food that is only cut, repackaged, or pasteurized by the

2141

seller and eggs, fish, meat, poultry, and foods containing these

2142

raw animal foods requiring cooking by the consumer as recommended

2143

by the Food and Drug Administration in chapter 3, part 401.11 of

2144

its food code so as to prevent food-borne illnesses. Prepared

2145

food includes sandwiches sold for immediate consumption and a

2146

combination of hot and cold food items or components if a single

2147

price has been established for the combination and the food

2148

products are sold in such combination, such as a meal; a

2149

specialty dish or serving; a sandwich or pizza; an ice cream

2150

cone, sundae, or banana split; or food sold in an unheated state

2151

by weight or volume as a single item, including cold components

2152

or side items.

2153

2.7. To soft drinks, which include, but are not limited to,

2154

any nonalcoholic beverage, any preparation or beverage commonly

2155

referred to as a "soft drink," or any noncarbonated drink made

2156

from milk derivatives or tea, when sold in cans or similar

2157

containers. The term "soft drinks" means nonalcoholic beverages

2158

that contain natural or artificial sweeteners. Soft drinks do not

2159

include beverages that contain milk or milk products, soy, rice,

2160

or similar milk substitutes, or greater than 50 percent of

2161

vegetable or fruit juice by volume.

2162

8. To ice cream, frozen yogurt, and similar frozen dairy or

2163

nondairy products in cones, small cups, or pints, popsicles,

2164

frozen fruit bars, or other novelty items, whether or not sold

2165

separately.

2166

9. To food prepared, whether on or off the premises, and

2167

sold for immediate consumption. This does not apply to food

2168

prepared off the premises and sold in the original sealed

2169

container, or the slicing of products into smaller portions.

2170

3.10. If When the food and food ingredients products are

2171

sold through a vending machine, pushcart, motor vehicle, or any

2172

other form of vehicle.

2173

4.11. To candy and any similar product regarded as candy or

2174

confection, based on its normal use, as indicated on the label or

2175

advertising thereof. The term "candy" means a preparation of

2176

sugar, honey, or other natural or artificial sweeteners in

2177

combination with chocolate, fruits, nuts, or other ingredients or

2178

flavorings in the form of bars, drops, or pieces. Candy does not

2179

include any preparation that contains flour and does not require

2180

refrigeration.

2181

5. To tobacco or tobacco products.

2182

12. To bakery products sold by bakeries, pastry shops, or

2183

like establishments that have eating facilities, except when sold

2184

for consumption off the seller's premises.

2185

13. When food products are served, prepared, or sold in or

2186

by restaurants, lunch counters, cafeterias, hotels, taverns, or

2187

other like places of business.

2188

(d) As used in this subsection, the term:

2189

1. "For consumption off the seller's premises" means that

2190

the food or drink is intended by the customer to be consumed at a

2191

place away from the dealer's premises.

2192

2. "For consumption on the seller's premises" means that

2193

the food or drink sold may be immediately consumed on the

2194

premises where the dealer conducts his or her business. In

2195

determining whether an item of food is sold for immediate

2196

consumption, there shall be considered the customary consumption

2197

practices prevailing at the selling facility.

2198

3. "Premises" shall be construed broadly, and means, but is

2199

not limited to, the lobby, aisle, or auditorium of a theater; the

2200

seating, aisle, or parking area of an arena, rink, or stadium; or

2201

the parking area of a drive-in or outdoor theater. The premises

2202

of a caterer with respect to catered meals or beverages shall be

2203

the place where such meals or beverages are served.

2204

4. "Hot prepared food products" means those products,

2205

items, or components which have been prepared for sale in a

2206

heated condition and which are sold at any temperature that is

2207

higher than the air temperature of the room or place where they

2208

are sold. "Hot prepared food products," for the purposes of this

2209

subsection, includes a combination of hot and cold food items or

2210

components where a single price has been established for the

2211

combination and the food products are sold in such combination,

2212

such as a hot meal, a hot specialty dish or serving, or a hot

2213

sandwich or hot pizza, including cold components or side items.

2214

(d)(e)1. Food or drinks not exempt under paragraph

2215

paragraphs (a), paragraph (b), or paragraph (c) are, and (d)

2216

shall be exempt if, notwithstanding those paragraphs, when

2217

purchased with food coupons or Special Supplemental Food Program

2218

for Women, Infants, and Children vouchers issued under authority

2219

of federal law.

2220

1.2. This paragraph is effective only if while federal law

2221

prohibits a state's participation in the federal food coupon

2222

program or Special Supplemental Food Program for Women, Infants,

2223

and Children if there is an official determination that state or

2224

local sales taxes are collected within that state on purchases of

2225

food or drinks with such coupons.

2226

2.3. This paragraph does shall not apply to any food or

2227

drinks on which federal law allows shall permit sales taxes

2228

without penalty, such as termination of the state's

2229

participation.

2230

(e) Dietary supplements that are sold as prepared food are

2231

not exempt.

2232

(2) EXEMPTIONS; MEDICAL.--

2233

(a) The following are There shall be exempt from the tax

2234

imposed by this chapter:

2235

1. Any drug. The term "drug" under this subsection means a

2236

compound, substance, or preparation, and any component of a

2237

compound, substance, or preparation, other than food and food

2238

ingredients, dietary supplements, and alcoholic beverages, which

2239

is:

2240

a. Recognized in the official United States Pharmacopoeia,

2241

official Homeopathic Pharmacopoeia of the United States, or

2242

official National Formulary, or the supplement to any of them;

2243

b. Intended for use in the diagnosis, cure, mitigation,

2244

treatment, or prevention of disease; or

2245

c. Intended to affect the structure or any function of the

2246

body.

2247

2. Durable medical equipment, mobility-enhancing equipment,

2248

or prosthetic device any medical products and supplies or

2249

medicine dispensed according to an individual prescription or

2250

prescriptions.

2251

a. The term "durable medical equipment" under this

2252

subsection means equipment, including repair and replacement

2253

parts to such equipment, but excluding mobility-enhancing

2254

equipment, which can withstand repeated use, is primarily and

2255

customarily used to serve a medical purpose, generally is not

2256

useful to a person in the absence of illness or injury, and is

2257

not worn on or in the body. written by a prescriber authorized by

2258

law to prescribe medicinal drugs;

2259

b. The term "mobility-enhancing equipment" under this

2260

subsection means equipment, including repair and replacement

2261

parts to such equipment, but excluding durable medical equipment,

2262

which is primarily and customarily used to provide or increase

2263

the ability to move from one place to another and which is

2264

appropriate for use in a home or a motor vehicle; is not

2265

generally used by persons having normal mobility; and does not

2266

include any motor vehicle or any equipment on a motor vehicle

2267

normally provided by a motor vehicle manufacturer.

2268

c. The term "prosthetic device" under this subsection means

2269

a replacement, corrective, or supportive device, including repair

2270

or replacement parts to such equipment, other than a hearing aid

2271

or a dental prosthesis, which is worn on or in the body to

2272

artificially replace a missing portion of the body; prevent or

2273

correct physical deformity or malfunction; or support a weak or

2274

deformed portion of the body.

2275

d. The term "prescription" under this subsection means an

2276

order, formula, or recipe issued in any form of oral, written,

2277

electronic, or other means of transmission by a duly licensed

2278

practitioner authorized by chapter 458, chapter 459, chapter 460,

2279

chapter 461, or chapter 466. The term also includes an orally

2280

transmitted order by the lawfully designated agent of a

2281

practitioner. The term also includes an order written or

2282

transmitted by a practitioner licensed to practice in a

2283

jurisdiction other than this state, but only if the pharmacist

2284

called upon to dispense the order determines, in the exercise of

2285

his or her professional judgment, that the order is valid and

2286

necessary for the treatment of a chronic or recurrent illness.

2287

3. Hypodermic needles.; hypodermic syringes;

2288

4. Chemical compounds and test kits used for the diagnosis

2289

or treatment of human disease, illness, or injury and intended

2290

for one-time use.;

2291

5. Over-the-counter drugs and common household remedies

2292

recommended and generally sold for internal or external use in

2293

the cure, mitigation, treatment, or prevention of illness or

2294

disease in human beings, but not including grooming and hygiene

2295

products. The term "over-the-counter drug" under this subsection

2296

means a drug the packaging for which contains a label that

2297

identifies the product as a drug as required by 21 C.F.R. s.

2298

201.66. The over-the-counter drug label includes a drug facts

2299

panel or a statement of the active ingredients, with a list of

2300

those ingredients contained in the compound, substance, or

2301

preparation. The term "grooming and hygiene products" under this

2302

subsection means soaps and cleaning solutions, shampoo,

2303

toothpaste, mouthwash, antiperspirants, and suntan lotions and

2304

screens, regardless of whether the items meet the definition of

2305

an over-the-counter drug.

2306

6. Band-aids, gauze, bandages, adhesive tape.

2307

7. Hearing aids.

2308

8. Dental prosthesis.

2309

9. Funerals. Funeral directors must pay tax on all tangible

2310

personal property used by them in their business. cosmetics or

2311

toilet articles, notwithstanding the presence of medicinal

2312

ingredients therein, according to a list prescribed and approved

2313

by the Department of Health, which list shall be certified to the

2314

Department of Revenue from time to time and included in the rules

2315

promulgated by the Department of Revenue. There shall also be

2316

exempt from the tax imposed by this chapter artificial eyes and

2317

limbs; orthopedic shoes; prescription eyeglasses and items

2318

incidental thereto or which become a part thereof; dentures;

2319

hearing aids; crutches; prosthetic and orthopedic appliances; and

2320

funerals. In addition, any

2321

2322

Items intended for one-time use which transfer essential optical

2323

characteristics to contact lenses are shall be exempt from the

2324

tax imposed by this chapter; however, this exemption shall apply

2325

applies only after $100,000 of the tax imposed by this chapter on

2326

the such items has been paid in any calendar year by a taxpayer

2327

who claims the exemption in that such year. Funeral directors

2328

shall pay tax on all tangible personal property used by them in

2329

their business.

2330

(b) For the purposes of this subsection:

2331

1. "Prosthetic and orthopedic appliances" means any

2332

apparatus, instrument, device, or equipment used to replace or

2333

substitute for any missing part of the body, to alleviate the

2334

malfunction of any part of the body, or to assist any disabled

2335

person in leading a normal life by facilitating such person's

2336

mobility. Such apparatus, instrument, device, or equipment shall

2337

be exempted according to an individual prescription or

2338

prescriptions written by a physician licensed under chapter 458,

2339

chapter 459, chapter 460, chapter 461, or chapter 466, or

2340

according to a list prescribed and approved by the Department of

2341

Health, which list shall be certified to the Department of

2342

Revenue from time to time and included in the rules promulgated

2343

by the Department of Revenue.

2344

2. "Cosmetics" means articles intended to be rubbed,

2345

poured, sprinkled, or sprayed on, introduced into, or otherwise

2346

applied to the human body for cleansing, beautifying, promoting

2347

attractiveness, or altering the appearance and also means

2348

articles intended for use as a compound of any such articles,

2349

including, but not limited to, cold creams, suntan lotions,

2350

makeup, and body lotions.

2351

3. "Toilet articles" means any article advertised or held

2352

out for sale for grooming purposes and those articles that are

2353

customarily used for grooming purposes, regardless of the name by

2354

which they may be known, including, but not limited to, soap,

2355

toothpaste, hair spray, shaving products, colognes, perfumes,

2356

shampoo, deodorant, and mouthwash.

2357

4. "Prescription" includes any order for drugs or medicinal

2358

supplies written or transmitted by any means of communication by

2359

a duly licensed practitioner authorized by the laws of the state

2360

to prescribe such drugs or medicinal supplies and intended to be

2361

dispensed by a pharmacist. The term also includes an orally

2362

transmitted order by the lawfully designated agent of such

2363

practitioner. The term also includes an order written or

2364

transmitted by a practitioner licensed to practice in a

2365

jurisdiction other than this state, but only if the pharmacist

2366

called upon to dispense such order determines, in the exercise of

2367

his or her professional judgment, that the order is valid and

2368

necessary for the treatment of a chronic or recurrent illness.

2369

The term also includes a pharmacist's order for a product

2370

selected from the formulary created pursuant to s. 465.186. A

2371

prescription may be retained in written form, or the pharmacist

2372

may cause it to be recorded in a data processing system, provided

2373

that such order can be produced in printed form upon lawful

2374

request.

2375

(b)(c) Chlorine is shall not be exempt from the tax imposed

2376

by this chapter if when used for the treatment of water in

2377

swimming pools.

2378

(d) Lithotripters are exempt.

2379

(c)(e) Human organs are exempt from the tax imposed by this

2380

chapter.

2381

(f) Sales of drugs to or by physicians, dentists,

2382

veterinarians, and hospitals in connection with medical treatment

2383

are exempt.

2384

(g) Medical products and supplies used in the cure,

2385

mitigation, alleviation, prevention, or treatment of injury,

2386

disease, or incapacity which are temporarily or permanently

2387

incorporated into a patient or client by a practitioner of the

2388

healing arts licensed in the state are exempt.

2389

(h) The purchase by a veterinarian of commonly recognized

2390

substances possessing curative or remedial properties which are

2391

ordered and dispensed as treatment for a diagnosed health

2392

disorder by or on the prescription of a duly licensed

2393

veterinarian, and which are applied to or consumed by animals for

2394

alleviation of pain or the cure or prevention of sickness,

2395

disease, or suffering are exempt. Also exempt are the purchase by

2396

a veterinarian of antiseptics, absorbent cotton, gauze for

2397

bandages, lotions, vitamins, and worm remedies.

2398

(i) X-ray opaques, also known as opaque drugs and

2399

radiopaque, such as the various opaque dyes and barium sulphate,

2400

when used in connection with medical X rays for treatment of

2401

bodies of humans and animals, are exempt.

2402

(d)(j) Parts, special attachments, special lettering, and

2403

other like items that are added to or attached to tangible

2404

personal property so that a handicapped person with a disability

2405

can use them are exempt from the tax imposed under this chapter

2406

if the when such items are purchased by a person pursuant to an

2407

individual prescription.

2408

(e)(k) This subsection shall be strictly construed and

2409

enforced.

2410

(17) EXEMPTIONS; CERTAIN GOVERNMENT CONTRACTORS.--

2411

(b) As used in this subsection, the term "overhead

2412

materials" means all tangible personal property, other than

2413

qualifying property as defined in s. 212.02(29)(a) s.

2414

212.02(14)(a) and electricity, which is used or consumed in the

2415

performance of a qualifying contract, title to which property

2416

vests in or passes to the government under the contract.

2417

2418

212.02(14)(a), the term "qualifying contract" means a contract

2419

with the United States Department of Defense or the National

2420

Aeronautics and Space Administration, or a subcontract

2421

thereunder, but does not include a contract or subcontract for

2422

the repair, alteration, improvement, or construction of real

2423

property, except to the extent that purchases under such a

2424

contract would otherwise be exempt from the tax imposed by this

2425

chapter.

2426

Section 10. Section 212.094, Florida Statutes, is created

2427

to read:

2428

212.094 Purchaser requests for tax refunds from dealers.--

2429

(1) If a purchaser seeks a refund or credit from a dealer

2430

for a tax collected under this chapter by that dealer, the

2431

purchaser must submit a written request for the refund or credit

2432

to the dealer in accordance with this section. The request must

2433

contain all the information necessary for the dealer to determine

2434

the validity of the purchaser's request.

2435

(2) The purchaser may not take any other action against the

2436

dealer with respect to the requested refund or credit until the

2437

dealer has had 60 days following receipt of a completed request

2438

to respond.

2439

(3) This section does not change the law regarding standing

2440

to claim a refund.

2441

Section 11. Section 212.12, Florida Statutes, is amended to

2442

read:

2443

212.12 Dealer's credit for collecting tax; delinquent

2444

payments; penalties for noncompliance; powers of department of

2445

Revenue in dealing with delinquents; computing tax due brackets

2446

applicable to taxable transactions; records required.--

2447

(1) Notwithstanding any other provision of law and for the

2448

purpose of compensating persons granting licenses for and the

2449

lessors of real and personal property taxed under this chapter

2450

hereunder, for the purpose of compensating dealers in tangible

2451

personal property, for the purpose of compensating dealers

2452

providing communication services and taxable services, for the

2453

purpose of compensating owners of places where admissions are

2454

collected, and for the purpose of compensating remitters of any

2455

taxes or fees reported on the same documents used utilized for

2456

the sales and use tax, as compensation for the keeping of

2457

prescribed records, filing timely tax returns, and the proper

2458

accounting and remitting of taxes by them, such seller, person,

2459

lessor, dealer, owner, and remitter, except (except dealers who

2460

make mail order sales, sales) shall be allowed 2.5 percent of the

2461

amount of the tax due and accounted for and remitted to the

2462

department, in the form of a deduction when in submitting his or

2463

her report and paying the amount due. by him or her; The

2464

department shall allow the such deduction of 2.5 percent of the

2465

amount of the tax to the person paying the same for remitting the

2466

tax and making of tax returns in the manner herein provided, for

2467

paying the amount due to be paid by him or her, and as further

2468

compensation to dealers in tangible personal property for the

2469

keeping of prescribed records and for collection of taxes and

2470

remitting the same. However, an if the amount of the tax due and

2471

remitted to the department for the reporting period exceeds

2472

$1,200, no allowance is not shall be allowed for all amounts in

2473

excess of $1,200.

2474

(a) The executive director of the department may is

2475

authorized to negotiate a collection allowance, pursuant to rules

2476

adopted promulgated by the department, with a dealer who makes

2477

mail order sales. The rules of the department shall provide

2478

guidelines for establishing a the collection allowance based upon

2479

the dealer's estimated costs of collecting the tax, the volume

2480

and value of the dealer's mail order sales to purchasers in this

2481

state, and the administrative and legal costs and likelihood of

2482

achieving collection of the tax absent the cooperation of the

2483

dealer. However, in no event shall the collection allowance

2484

negotiated by the executive director may not exceed 10 percent of

2485

the tax remitted for a reporting period.

2486

1.(a) The department of Revenue may deny the collection

2487

allowance if a taxpayer files an incomplete return or if the

2488

required tax return or tax is delinquent at the time of payment.

2489

1. For the purposes of this subsection, an "incomplete

2490

return" is, for purposes of this chapter, a return that which is

2491

lacking such uniformity, completeness, and arrangement so that

2492

the physical handling, verification, review of the return, or

2493

determination of other taxes and fees reported on the return

2494

cannot may not be readily accomplished.

2495

2. The department shall adopt rules specifying the

2496

requiring such information as it may deem necessary to ensure

2497

that the tax levied hereunder is properly collected, reviewed,

2498

compiled, reported, and enforced, including, but not limited to:

2499

the amount of gross sales; the amount of taxable sales; the

2500

amount of tax collected or due; the amount of lawful refunds,

2501

deductions, or credits claimed; the amount claimed as the

2502

dealer's collection allowance; the amount of penalty and

2503

interest; and the amount due with the return; and such other

2504

information as the department of Revenue may specify. The

2505

department shall require that transient rentals and agricultural

2506

equipment transactions be separately shown. Sales made through

2507

vending machines, as defined in s. 212.0515, must be separately

2508

shown on the return. Sales made through coin-operated amusement

2509

machines as defined by s. 212.02 and the number of machines

2510

operated must be separately shown on the return or on a form

2511

prescribed by the department. If a separate form is required, the

2512

same penalties for late filing, incomplete filing, or failure to

2513

file as provided for the sales tax return shall apply to the said

2514

form.

2515

(b) The collection allowance and other credits or

2516

deductions provided in this chapter shall be applied

2517

proportionally to any taxes or fees reported on the same

2518

documents used for the sales and use tax.

2519

2520

provided in this section may elect to forego the collection

2521

allowance and direct that the said amount be transferred into the

2522

Educational Enhancement Trust Fund. Such an election must be made

2523

with the timely filing of a return and may not be rescinded once

2524

made. If a dealer who makes the such an election files a

2525

delinquent return, underpays the tax, or files an incomplete

2526

return, the amount transferred into the Educational Enhancement

2527

Trust Fund shall be the amount of the collection allowance

2528

remaining after resolution of liability for all of the tax,

2529

interest, and penalty due on that return or underpayment of tax.

2530

The Department of Education shall distribute the remaining amount

2531

from the trust fund to the school districts that have adopted

2532

resolutions stating that those funds are to will be used to

2533

ensure that up-to-date technology is purchased for the classrooms

2534

in the district and that teachers are trained in the use of that

2535

technology. Revenues collected in districts that do not adopt

2536

such a resolution shall be equally distributed to districts that

2537

have adopted such resolutions.

2538

1.2. This paragraph applies to all taxes, surtaxes, and any

2539

local option taxes administered under this chapter and remitted

2540

directly to the department. It This paragraph does not apply to

2541

any locally imposed and self-administered convention development

2542

tax, tourist development tax, or tourist impact tax administered

2543

under this chapter.

2544

2.3. Revenues from the dealer-collection allowances shall

2545

be transferred quarterly from the General Revenue Fund to the

2546

Educational Enhancement Trust Fund. The department of Revenue

2547

shall provide to the Department of Education quarterly

2548

information about such revenues by county to which the collection

2549

allowance was attributed.

2550

2551

Notwithstanding any provision of chapter 120 to the contrary, the

2552

department of Revenue may adopt rules to carry out the amendment

2553

made by chapter 2006-52, Laws of Florida, to this section.

2554

(d) A Model 1 seller as defined in s. 213.256, under the

2555

Streamlined Sales and Use Tax Agreement, is not entitled to a

2556

collection allowance as described in this subsection. However,

2557

the department may provide the monetary allowance required to be

2558

provided by the state to certified service providers and

2559

voluntary sellers under the agreement.

2560

1. The monetary allowances must be in a form that certified

2561

service providers or voluntary sellers are permitted to retain

2562

from the tax revenue collected on remote sales to be remitted to

2563

this state pursuant to this chapter.

2564

2. For purposes of this paragraph, "voluntary seller" means

2565

a seller that is not required to register in this state to

2566

collect sales tax under this chapter and "remote sales" means

2567

sales revenue generated by a seller for this state for which the

2568

seller does not have to register to collect sales tax under this

2569

chapter.

2570

(2)(a) If When any person required hereunder to make a any

2571

return or to pay any tax or fee imposed by this chapter either

2572

fails to timely file such return or fails to pay the tax or fee

2573

shown due on the return within the time required hereunder, in

2574

addition to all other penalties provided herein and by law the

2575

laws of this state in respect to such taxes or fees, a specific

2576

penalty shall be added to the tax or fee in the amount of 10

2577

percent of either the tax or fee shown on the return that is not

2578

timely filed or any tax or fee not paid timely. The penalty may

2579

not be less than $50 for failure to timely file a tax return

2580

required by s. 212.11(1) or timely pay the tax or fee shown due

2581

on the return, except as provided in s. 213.21(10), must be at

2582

least $50. If a person fails to timely file a tax return required

2583

by s. 212.11(1) and to timely pay the tax or fee shown due on the

2584

return, only one penalty of 10 percent, which is at least may not

2585

be less than $50, shall be imposed.

2586

(b) If When any person required under this section to make

2587

a return or to pay a tax or fee imposed by this chapter fails to

2588

disclose the tax or fee on the return within the time required,

2589

excluding a noncompliant filing event generated by situations

2590

covered in paragraph (a), in addition to all other penalties

2591

provided in this section and by law the laws of this state in

2592

respect to such taxes or fees, a specific penalty shall be added

2593

to the additional tax or fee owed in the amount of 10 percent of

2594

any such unpaid tax or fee not paid timely if the failure is for

2595

up to not more than 30 days, with an additional 10 percent of any

2596

such unpaid tax or fee for each additional 30 days, or fraction

2597

thereof, that while the failure continues, not to exceed a total

2598

penalty of 50 percent, in the aggregate, of any unpaid tax or

2599

fee.

2600

2601

evade any tax imposed under this chapter fails to file six

2602

consecutive returns as required by law commits a felony of the

2603

third degree, punishable as provided in s. 775.082 or s. 775.083.

2604

(d) Any person who makes a false or fraudulent return with

2605

a willful intent to evade payment of any tax or fee imposed under

2606

this chapter; any person who, after the department's delivery of

2607

a written notice to the person's last known address specifically

2608

alerting the person of the requirement to register the person's

2609

business as a dealer, intentionally fails to register the

2610

business; and any person who, after the department's delivery of

2611

a written notice to the person's last known address specifically

2612

alerting the person of the requirement to collect tax on specific

2613

transactions, intentionally fails to collect such tax, shall, in

2614

addition to the other penalties provided by law, be liable for a

2615

specific penalty of 100 percent of any unreported or any

2616

uncollected tax or fee and, upon conviction, for fine and

2617

punishment as provided in s. 775.082, s. 775.083, or s. 775.084.

2618

Delivery of written notice may be made by certified mail, or by

2619

the use of such other method as is documented as being necessary

2620

and reasonable under the circumstances. The civil and criminal

2621

penalties imposed herein for failure to comply with a written

2622

notice alerting the person of the requirement to register the

2623

person's business as a dealer or to collect tax on specific

2624

transactions does shall not apply if the person timely files a

2625

written challenge to such notice in accordance with procedures

2626

established by the department by rule or the notice fails to

2627

clearly advise that failure to comply with or timely challenge

2628

the notice will result in the imposition of the civil and

2629

criminal penalties imposed herein.

2630

1. If the total amount of unreported or uncollected taxes

2631

or fees is less than $300, the first offense resulting in

2632

conviction is a misdemeanor of the second degree, the second

2633

offense resulting in conviction is a misdemeanor of the first

2634

degree, and the third and all subsequent offenses are

2635

misdemeanors resulting in conviction is a misdemeanor of the

2636

first degree, and the third and all subsequent offenses resulting

2637

in conviction are felonies of the third degree.

2638

2. If the total amount of unreported or uncollected taxes

2639

or fees is $300 or more but less than $20,000, the offense is a

2640

felony of the third degree.

2641

3. If the total amount of unreported or uncollected taxes

2642

or fees is $20,000 or more but less than $100,000, the offense is

2643

a felony of the second degree.

2644

4. If the total amount of unreported or uncollected taxes

2645

or fees is $100,000 or more, the offense is a felony of the first

2646

degree.

2647

(e) A person who willfully attempts in any manner to evade

2648

any tax, surcharge, or fee imposed under this chapter or the

2649

payment thereof is, in addition to any other penalties provided

2650

by law, liable for a specific penalty in the amount of 100

2651

percent of the tax, surcharge, or fee, and commits a felony of

2652

the third degree, punishable as provided in s. 775.082, s.

2653

775.083, or s. 775.084.

2654

(f) If When any person, firm, or corporation fails to

2655

timely remit the proper estimated payment required under s.

2656

212.11, a specific penalty shall be added in an amount equal to

2657

10 percent of the any unpaid estimated tax. Beginning with

2658

January 1, 1985, returns, The department, upon a showing of

2659

reasonable cause, may is authorized to waive or compromise

2660

penalties imposed by this paragraph. However, other penalties and

2661

interest shall be due and payable if the return on which the

2662

estimated payment is was due is was not timely or properly filed.

2663

(g) A dealer who files a consolidated return pursuant to s.

2664

212.11(1)(e) is subject to the penalty established in paragraph

2665

(e) unless the dealer has paid the required estimated tax for his

2666

or her consolidated return as a whole without regard to each

2667

location. If the dealer fails to pay the required estimated tax

2668

for his or her consolidated return as a whole, each filing

2669

location shall stand on its own with respect to calculating

2670

penalties pursuant to paragraph (f).

2671

(3) If When any dealer, or other person charged herein,

2672

fails to remit the tax, or any portion thereof, on or before the

2673

day when the such tax is required by law to be paid, there shall

2674

be added to the amount due interest at the rate of 1 percent per

2675

month of the amount due from the date due until paid shall be

2676

added to the amount due. Interest on the delinquent tax shall be

2677

calculated beginning on the 21st day of the month following the

2678

month for which the tax is due, except as otherwise provided in

2679

this chapter.

2680

(4) All penalties and interest imposed by this chapter

2681

shall be payable to and collectible by the department in the same

2682

manner as if they were a part of the tax imposed. The department

2683

may settle or compromise any such interest or penalties pursuant

2684

to s. 213.21.

2685

(5)(a) The department is authorized to audit or inspect the

2686

records and accounts of dealers defined herein, including audits

2687

or inspections of dealers who make mail order sales to the extent

2688

permitted by another state, and to correct by credit any

2689

overpayment of tax, and, in the event of a deficiency, an

2690

assessment shall be made and collected. An No administrative

2691

finding of fact is not necessary prior to the assessment of a any

2692

tax deficiency.

2693

(b) If In the event any dealer or other person charged

2694

herein fails or refuses to make his or her records available for

2695

inspection so that no audit or examination is has been made of

2696

the books and records of such dealer or person, fails or refuses

2697

to register as a dealer, fails to make a report and pay the tax

2698

as provided by this chapter, makes a grossly incorrect report or

2699

makes a report that is false or fraudulent, then, in such event,

2700

it shall be the duty of the department shall to make an

2701

assessment from an estimate based upon the best information then

2702

available to it for the taxable period of retail sales of the

2703

such dealer, the gross proceeds from rentals, the total

2704

admissions received, amounts received from leases of tangible

2705

personal property by the such dealer, or of the cost price of all

2706

articles of tangible personal property imported by the dealer for

2707

use or consumption or distribution or storage to be used or

2708

consumed in this state, or of the sales or cost price of all

2709

services the sale or use of which is taxable under this chapter,

2710

together with interest, plus penalty, if such have accrued, as

2711

the case may be. Then The department shall proceed to collect

2712

such taxes, interest, and penalty on the basis of the such

2713

assessment, which shall be considered prima facie correct, and

2714

the burden to show the contrary shall rest upon the dealer,

2715

seller, owner, or lessor, as the case may be.

2716

(6)(a) The department may is given the power to prescribe

2717

the records to be kept by all persons subject to taxes imposed by

2718

this chapter. It shall be the duty of Every person required to

2719

make a report and pay any tax under this chapter, every person

2720

receiving rentals or license fees, and owners of places of

2721

admission shall, to keep and preserve suitable records of the

2722

sales, leases, rentals, license fees, admissions, or purchases,

2723

as the case may be, taxable under this chapter; such other books

2724

of account as may be necessary to determine the amount of the tax

2725

due hereunder; and other information as may be required by the

2726

department. It shall be the duty of Every such person shall also

2727

so charged with such duty, moreover, to keep and preserve, as

2728

long as required by s. 213.35, all invoices and other records of

2729

goods, wares, and merchandise; records of admissions, leases,

2730

license fees and rentals; and records of all other subjects of

2731

taxation under this chapter. All such books, invoices, and other

2732

records must shall be open to examination at all reasonable hours

2733

to the department or any of its duly authorized agents.

2734

(b) For the purpose of this subsection, if a dealer does

2735

not have adequate records of his or her retail sales or

2736

purchases, the department may, upon the basis of a test or

2737

sampling of the dealer's available records or other information

2738

relating to the sales or purchases made by the such dealer for a

2739

representative period, determine the proportion that taxable

2740

retail sales bear to total retail sales or the proportion that

2741

taxable purchases bear to total purchases. This subsection does

2742

not affect the duty of the dealer to collect, or the liability of

2743

any consumer to pay, any tax imposed by or pursuant to this

2744

chapter.

2745

2746

voluminous in nature and substance, the department may sample the

2747

such records and project the audit findings derived therefrom

2748

over the entire audit period to determine the proportion that

2749

taxable retail sales bear to total retail sales or the proportion

2750

that taxable purchases bear to total purchases.

2751

1. In order to conduct such a sample, the department must

2752

first make a good faith effort to reach an agreement with the

2753

dealer, which agreement provides for the means and methods to be

2754

used in the sampling process. If an In the event that no

2755

agreement is not reached, the dealer is entitled to a review by

2756

the executive director. For In the case of fixed assets, a dealer

2757

may agree in writing with the department for adequate but

2758

voluminous records to be statistically sampled. The Such an

2759

agreement must shall provide for the methodology to be used in

2760

the statistical sampling process. The audit findings derived

2761

therefrom shall be projected over the period represented by the

2762

sample in order to determine the proportion that taxable

2763

purchases bear to total purchases. Once an agreement has been

2764

signed, it is final and conclusive with respect to the method of

2765

sampling fixed assets, and the department may not conduct a

2766

detailed audit of fixed assets, and the taxpayer may not request

2767

a detailed audit after the agreement is reached.

2768

2. For the purposes of sampling pursuant to subparagraph

2769

1., the department shall project any deficiencies and

2770

overpayments derived therefrom over the entire audit period. In

2771

determining the dealer's compliance, the department shall reduce

2772

any tax deficiency as derived from the sample by the amount of

2773

any overpayment derived from the sample. If In the event the

2774

department determines from the sample results that the dealer has

2775

a net tax overpayment, the department shall provide the findings

2776

of this overpayment to the Chief Financial Officer for repayment

2777

of funds paid into the State Treasury through error pursuant to

2778

s. 215.26.

2779

3.a. A taxpayer is entitled, both in connection with an

2780

audit and in connection with an application for refund filed

2781

independently of any audit, to establish the amount of any refund

2782

or deficiency through statistical sampling if when the taxpayer's

2783

records are adequate but voluminous. For In the case of fixed

2784

assets, the a dealer may agree in writing with the department for

2785

adequate but voluminous records to be statistically sampled. The

2786

Such an agreement must shall provide for the methodology to be

2787

used in the statistical sampling process. The audit findings

2788

derived therefrom shall be projected over the period represented

2789

by the sample in order to determine the proportion that taxable

2790

purchases bear to total purchases. Once an agreement has been

2791

signed, it is final and conclusive with respect to the method of

2792

sampling fixed assets, and the department may not conduct a

2793

detailed audit of fixed assets, and the taxpayer may not request

2794

a detailed audit after the agreement is reached.

2795

b. Alternatively, a taxpayer is entitled to establish any

2796

refund or deficiency through any other sampling method agreed to

2797

upon by the taxpayer and the department if when the taxpayer's

2798

records, other than those regarding fixed assets, are adequate

2799

but voluminous. Whether done through statistical sampling or any

2800

other sampling method agreed upon by the taxpayer and the

2801

department, the completed sample must reflect both overpayments

2802

and underpayments of taxes due. The sample shall be conducted

2803

through:

2804

(I) A taxpayer request to perform the sampling through the

2805

certified audit program pursuant to s. 213.285;

2806

(II) Attestation by a certified public accountant as to the

2807

adequacy of the sampling method used utilized and the results

2808

reached using the such sampling method; or

2809

(III) A sampling method that has been submitted by the

2810

taxpayer and approved by the department before a refund claim is

2811

submitted. This sub-sub-subparagraph does not prohibit a taxpayer

2812

from filing a refund claim prior to approval by the department of

2813

the sampling method; however, a refund claim submitted before the

2814

sampling method has been approved is not by the department cannot

2815

be a complete refund application pursuant to s. 213.255 until the

2816

sampling method has been approved by the department.

2817

c. The department shall prescribe by rule the procedures to

2818

be followed under each method of sampling. The Such procedures

2819

must shall follow generally accepted auditing procedures for

2820

sampling. The rule must shall also set forth other criteria

2821

regarding the use of sampling, including, but not limited to,

2822

training requirements that must be met before a sampling method

2823

may be used utilized and the steps necessary for the department

2824

and the taxpayer to reach agreement on a sampling method

2825

submitted by the taxpayer for approval by the department.

2826

(7) If In the event the dealer has imported tangible

2827

personal property and he or she fails to produce an invoice

2828

showing the cost price of the articles, as defined in this

2829

chapter, which are subject to tax, or the invoice does not

2830

reflect the true or actual cost price as defined herein, then the

2831

department shall ascertain, in any manner feasible, the true cost

2832

price, and assess and collect the tax thereon with interest plus

2833

penalties, if such have accrued on the true cost price as

2834

assessed by it. The assessment so made shall be considered prima

2835

facie correct, and the burden duty shall be on the dealer to show

2836

to the contrary.

2837

(8) For In the case of the lease or rental of tangible

2838

personal property, or other rentals or license fees as herein

2839

defined and taxed, if the consideration given or reported by the

2840

lessor, person receiving rental or license fee, or dealer does

2841

not, in the judgment of the department, represent the true or

2842

actual consideration, then the department is authorized to

2843

ascertain the same and assess and collect the tax thereon in the

2844

same manner as above provided in subsection (7), with respect to

2845

imported tangible property, together with interest, plus

2846

penalties, if such have accrued.

2847

(9) Taxes imposed by this chapter upon the privilege of the

2848

use, consumption, storage for consumption, or sale of tangible

2849

personal property, admissions, license fees, rentals,

2850

communication services, and upon the sale or use of services as

2851

herein taxed shall be collected by the upon the basis of an

2852

addition of the tax imposed by this chapter to the total price of

2853

such admissions, license fees, rentals, communication or other

2854

services, or sale price of such article or articles that are

2855

purchased, sold, or leased at any one time by or to a customer or

2856

buyer.; The dealer, or person charged herein, is required to pay

2857

a privilege tax in the amount of the tax imposed by this chapter

2858

on the total of his or her gross sales of tangible personal

2859

property, admissions, license fees, rentals, and communication

2860

services or to collect a tax upon the sale or use of services,

2861

and such person or dealer shall add the tax imposed by this

2862

chapter to the price, license fee, rental, or admissions, and

2863

communication or other services and collect the total sum from

2864

the purchaser, admittee, licensee, lessee, or consumer. In

2865

computing the tax due or to be collected, the seller may elect to

2866

compute the tax on an item basis or an invoice basis. The tax

2867

rate shall be the sum of the applicable state and local rate, if

2868

any, and the tax computation must be carried to the third decimal

2869

place. If the third decimal place is greater than four, the tax

2870

shall be rounded to the next whole cent. The department shall

2871

make available in an electronic format or otherwise the tax

2872

amounts and the following brackets applicable to all transactions

2873

taxable at the rate of 6 percent:

2874

(a) On single sales of less than 10 cents, no tax shall be

2875

added.

2876

(b) On single sales in amounts from 10 cents to 16 cents,

2877

both inclusive, 1 cent shall be added for taxes.

2878

2879

inclusive, 2 cents shall be added for taxes.

2880

(d) On sales in amounts from 34 cents to 50 cents, both

2881

inclusive, 3 cents shall be added for taxes.

2882

(e) On sales in amounts from 51 cents to 66 cents, both

2883

inclusive, 4 cents shall be added for taxes.

2884

(f) On sales in amounts from 67 cents to 83 cents, both

2885

inclusive, 5 cents shall be added for taxes.

2886

(g) On sales in amounts from 84 cents to $1, both

2887

inclusive, 6 cents shall be added for taxes.

2888

(h) On sales in amounts of more than $1, 6 percent shall be

2889

charged upon each dollar of price, plus the appropriate bracket

2890

charge upon any fractional part of a dollar.

2891

(10) In counties which have adopted a discretionary sales

2892

surtax at the rate of 1 percent, the department shall make

2893

available in an electronic format or otherwise the tax amounts

2894

and the following brackets applicable to all taxable transactions

2895

that would otherwise have been transactions taxable at the rate

2896

of 6 percent:

2897

(a) On single sales of less than 10 cents, no tax shall be

2898

added.

2899

(b) On single sales in amounts from 10 cents to 14 cents,

2900

both inclusive, 1 cent shall be added for taxes.

2901

2902

inclusive, 2 cents shall be added for taxes.

2903

(d) On sales in amounts from 29 cents to 42 cents, both

2904

inclusive, 3 cents shall be added for taxes.

2905

(e) On sales in amounts from 43 cents to 57 cents, both

2906

inclusive, 4 cents shall be added for taxes.

2907

(f) On sales in amounts from 58 cents to 71 cents, both

2908

inclusive, 5 cents shall be added for taxes.

2909

(g) On sales in amounts from 72 cents to 85 cents, both

2910

inclusive, 6 cents shall be added for taxes.

2911

(h) On sales in amounts from 86 cents to $1, both

2912

inclusive, 7 cents shall be added for taxes.

2913

(i) On sales in amounts from $1 up to, and including, the

2914

first $5,000 in price, 7 percent shall be charged upon each

2915

dollar of price, plus the appropriate bracket charge upon any

2916

fractional part of a dollar.

2917

(j) On sales in amounts of more than $5,000 in price, 7

2918

percent shall be added upon the first $5,000 in price, and 6

2919

percent shall be added upon each dollar of price in excess of the

2920

first $5,000 in price, plus the bracket charges upon any

2921

fractional part of a dollar as provided for in subsection (9).

2922

(11) The department shall make available in an electronic

2923

format or otherwise the tax amounts and brackets applicable to

2924

all taxable transactions that occur in counties that have a

2925

surtax at a rate other than 1 percent which transactions would

2926

otherwise have been transactions taxable at the rate of 6

2927

percent. Likewise, the department shall make available in an

2928

electronic format or otherwise the tax amounts and brackets

2929

applicable to transactions taxable at 7 percent pursuant to s.

2930

212.05(1)(e) and on transactions which would otherwise have been

2931

so taxable in counties which have adopted a discretionary sales

2932

surtax.

2933

(10)(12) It is hereby declared to be the legislative intent

2934

that if, whenever in the construction, administration, or

2935

enforcement of this chapter, there is may be any question

2936

respecting a duplication of the tax, the end consumer, or last

2937

retail sale is, be the sale intended to be taxed and that, as far

2938

insofar as may be practicable, there may not be no duplication or

2939

pyramiding of the tax.

2940

(11)(13) In order to aid the administration and enforcement

2941

of the provisions of this chapter with respect to the rentals and

2942

license fees, each lessor or person granting the use of any

2943

hotel, apartment house, roominghouse, tourist or trailer camp,

2944

mobile home or recreational vehicle parks, real property, or any

2945

interest therein, or any portion thereof, inclusive of owners;

2946

property managers; lessors; landlords; hotel, apartment house,

2947

and roominghouse operators; and all licensed real estate agents

2948

within the state leasing, granting the use of, or renting such

2949

property, shall be required to keep a record of each and every

2950

such lease, license, or rental transaction that which is taxable

2951

under this chapter, in such a manner and upon such forms as the

2952

department may prescribe, and to report such transaction to the

2953

department or its designated agents, and to maintain such records

2954

as long as required by s. 213.35, subject to the inspection of

2955

the department and its agents. Upon the failure by the such

2956

owner; property manager; lessor; landlord; hotel, apartment

2957

house, roominghouse, tourist or trailer camp operator, or mobile

2958

home or recreational vehicle park; or real estate agent to keep

2959

and maintain such records and to make such reports upon the forms

2960

and in the manner prescribed, the such owner; property manager;

2961

lessor; landlord; hotel, apartment house, roominghouse, tourist

2962

or trailer camp operator, or mobile home or recreational vehicle

2963

park; receiver of rent or license fees; or real estate agent

2964

commits is guilty of a misdemeanor of the second degree,

2965

punishable as provided in s. 775.082 or s. 775.083, for the first

2966

offense; and for subsequent offenses commits, they are each

2967

guilty of a misdemeanor of the first degree, punishable as

2968

provided in s. 775.082 or s. 775.083. If, however, any subsequent

2969

offense involves intentional destruction of such records with an

2970

intent to evade payment of or deprive the state of any tax

2971

revenues, a such subsequent offense is shall be a felony of the

2972

third degree, punishable as provided in s. 775.082 or s. 775.083.

2973

(12)(14) If it is determined upon audit that a dealer has

2974

collected and remitted taxes by applying the applicable tax rate

2975

to each transaction as described in subsection (9) and rounding

2976

the tax due to the nearest whole cent rather than to the third

2977

decimal place applying the appropriate bracket system provided by

2978

law or department rule, the dealer is shall not be held liable

2979

for additional tax, penalty, and interest resulting from such

2980

failure if:

2981

(a) The dealer acted in a good faith belief that rounding

2982

to the nearest whole cent was the proper method of determining

2983

the amount of tax due on each taxable transaction.

2984

(b) The dealer timely reported and remitted all taxes

2985

collected on each taxable transaction.

2986

2987

the laws and rules concerning brackets applicable to the dealer's

2988

transactions.

2989

Section 12. Subsection (3) of section 212.17, Florida

2990

Statutes, is amended to read:

2991

212.17 Credits for returned goods, rentals, or admissions;

2992

goods acquired for dealer's own use and subsequently resold;

2993

additional powers of department.--

2994

(3) A dealer who has paid the tax imposed by this chapter

2995

on tangible personal property or services may take a credit or

2996

obtain a refund for any tax paid by the dealer on the unpaid

2997

balance due on worthless accounts within 12 months following the

2998

month in which the bad debt has been written charged off for

2999

federal income tax purposes. A dealer who is not required to file

3000

a federal income tax return may take a credit or obtain a refund

3001

for any tax paid by the dealer on the unpaid balance due on

3002

worthless accounts within 12 months following the month in which

3003

the bad debt is written off as uncollectible in the dealer's

3004

books and records and would be eligible for a bad-debt deduction

3005

for federal income tax purposes if the dealer was required to

3006

file a federal income tax return.

3007

(a) A dealer who is taking a credit or obtaining a refund

3008

on worthless accounts shall base the bad-debt-recovery

3009

calculation in accordance with 26 U.S.C. s. 166.

3010

(b) Notwithstanding paragraph (a), the amount calculated

3011

pursuant to 26 U.S.C. s. 166 must be adjusted to exclude

3012

financing charges or interest, sales or use taxes charged on the

3013

purchase price, uncollectible amounts on property that remains in

3014

the possession of the seller until the full purchase price is

3015

paid, expenses incurred in attempting to collect any debt, and

3016

repossessed property.

3017

3018

exceeds the amount of taxable sales for the period during which

3019

the bad debt is written off, a refund claim must be filed within

3020

3 years after the due date of the return on which the bad debt

3021

could first be claimed.

3022

(d) If any accounts written so charged off for which a

3023

credit or refund has been obtained are thereafter in whole or in

3024

part paid to the dealer, the amount so paid must shall be

3025

included in the first return filed after such collection and the

3026

tax paid accordingly.

3027

(e) If filing responsibilities have been assumed by a

3028

certified service provider, the service provider shall claim, on

3029

behalf of the seller, any bad-debt allowance provided by this

3030

section. The certified service provider must credit or refund to

3031

the seller the full amount of any bad-debt allowance or refund

3032

received.

3033

(f) For the purposes of reporting a payment received on a

3034

previously claimed bad debt, payments made on a debt or account

3035

shall be applied proportionally first to the taxable price of the

3036

property or service and the sales tax thereon, and secondly to

3037

interest, service charges, and any other charges.

3038

(g) If the books and records of the party claiming the bad-

3039

debt allowance support an allocation of the bad debt among states

3040

that are members of the Streamlined Sales and Use Tax Agreement,

3041

the allocation is authorized among those states.

3042

Section 13. Section 213.052, Florida Statutes, is created

3043

to read:

3044

213.052 Notice of state tax rate change.--

3045

(1) A sales or use tax rate change imposed under chapter

3046

212 is effective on January 1, April 1, July 1, or October 1. The

3047

Department of Revenue shall provide notice of the rate change to

3048

all affected sellers 90 days before the effective date of the

3049

rate change.

3050

(2) Failure of a seller to receive notice does not relieve

3051

the seller of its obligation to collect the sales or use tax.

3052

Section 14. Section 213.0521, Florida Statutes, is created

3053

to read:

3054

213.0521 Effective date of state tax rate changes applied

3055

to services.--A tax rate change for taxing services covering a

3056

period starting before and ending after the effective date of the

3057

tax is applied as follows:

3058

(1) For a tax rate increase, the new rate applies to the

3059

first billing period starting on or after the effective date.

3060

(2) For a tax rate decrease, the new rate applies to bills

3061

rendered on or after the effective date.

3062

Section 15. Subsection (11) is added to section 213.21,

3063

Florida Statutes, to read:

3064

213.21 Informal conferences; compromises.--

3065

(11) Amnesty shall be provided for uncollected or unpaid

3066

sales or use taxes to a seller who registers to pay or to collect

3067

and remit applicable sales or use taxes in accordance with the

3068

terms of the Streamlined Sales and Use Tax Agreement authorized

3069

under s. 213.256 if the seller was not registered with the

3070

Department of Revenue in the 12-month period preceding the

3071

effective date of participation in the agreement by this state.

3072

(a) The amnesty precludes assessment for uncollected or

3073

unpaid sales or use taxes, together with penalty or interest for

3074

sales made during the period the seller was not registered with

3075

the Department of Revenue, if registration occurs within 12

3076

months after the effective date of this state's participation in

3077

the agreement.

3078

(b) The amnesty is not available to a seller for any matter

3079

for which the seller received notice of the commencement of an

3080

audit if the audit is not yet finally resolved, including any

3081

related administrative and judicial processes.

3082

3083

already paid or remitted to the state or to taxes collected by

3084

the seller.

3085

(d) Absent the seller's fraud or intentional

3086

misrepresentation of a material fact, the amnesty is fully

3087

effective as long as the seller continues registration and

3088

payment or collection and remittance of applicable sales or use

3089

taxes for at least 36 months.

3090

(e) The amnesty applies only to sales or use taxes due from

3091

a seller in its capacity as a seller and not to sales or use

3092

taxes due from a seller in its capacity as a buyer.

3093

Section 16. Section 213.256, Florida Statutes, is amended

3094

to read:

3095

213.256 Simplified Sales and Use Tax Administration Act.--

3096

(1) As used in this section and s. 213.2565, the term:

3097

(a) "Agent" means a person appointed by a seller to

3098

represent the seller before the member states.

3099

(a) "Department" means the Department of Revenue.

3100

(b) "Agreement" means the Streamlined Sales and Use Tax

3101

Agreement, as amended and adopted on January 27, 2001, by the

3102

Executive Committee of the National Conference of State

3103

Legislatures.

3104

3105

jointly by member the states that are signatories to the

3106

agreement to calculate the tax imposed by each jurisdiction on a

3107

transaction, determine the amount of tax to remit to the

3108

appropriate state, and maintain a record of the transaction.

3109

(d) "Certified service provider" means an agent certified

3110

under jointly by the states that are signatories to the agreement

3111

to perform all of the seller's sales tax functions other than the

3112

obligation to remit tax on the seller's own purchases.

3113

(e) "Department" means the Department of Revenue.

3114

(f) "Governing board" means the Streamlined Sales Tax

3115

Governing Board, Inc., composed of member states and responsible

3116

for administering and operating the agreement.

3117

(g) "Member states" means states that are signatories to

3118

the agreement.

3119

(h) "Model 1 seller" means a seller that has selected a

3120

certified service provider as its agent to perform all the

3121

seller's sales and use tax functions other than the obligation to

3122

remit tax on the seller's own purchases.

3123

(i) "Model 2 seller" means a seller that has selected a

3124

certified automated system to perform part of its sales and use

3125

tax functions, but that retains responsibility for remitting the

3126

tax.

3127

(j) "Model 3 seller" means a seller that has sales in at

3128

least five member states, has total annual sales revenue of at

3129

least $500 million, has a proprietary system that calculates the

3130

amount of tax due in each jurisdiction, and has entered into a

3131

performance agreement with the member states which establishes a

3132

tax performance standard for the seller. As used in this

3133

paragraph, a "seller" includes an affiliated group of sellers

3134

using the same proprietary system.

3135

(k)(e) "Person" means an individual, trust, estate,

3136

fiduciary, partnership, limited liability company, limited

3137

liability partnership, corporation, or any other legal entity.

3138

(l)(f) "Sales tax" means the tax levied under chapter 212.

3139

(m)(g) "Seller" means any person making sales, leases, or

3140

rentals of personal property or services.

3141

(n)(h) "State" means any state of the United States and the

3142

District of Columbia.

3143

(o)(i) "Use tax" means the tax levied under chapter 212.

3144

(2)(a) The executive director of the department shall enter

3145

into the Streamlined Sales and Use Tax Agreement with one or more

3146

member states to simplify and modernize sales and use tax

3147

administration in order to substantially reduce the burden of tax

3148

compliance for all sellers and for all types of commerce.

3149

(a) In furtherance of the agreement, The executive director

3150

of the department or his or her designee shall act jointly with

3151

other member states that are members of the agreement to

3152

establish standards for certification of a certified service

3153

provider and certified automated system and establish performance

3154

standards for multistate sellers.

3155

(b) The executive director of the department or his or her

3156

designee shall take other actions reasonably required to

3157

administer this section. Other actions authorized by this section

3158

include, but are not limited to, the adoption of rules and the

3159

joint procurement, with other member states, of goods and

3160

services in furtherance of the cooperative agreement.

3161

3162

designee may represent this state before the other member states

3163

that are signatories to the agreement.

3164

(3) The executive director of the department may not enter

3165

into the Streamlined Sales and Use Tax agreement unless the

3166

agreement requires each state to abide by the following

3167

requirements:

3168

(a) The agreement must set restrictions to limit, over

3169

time, the number of state tax rates.

3170

(b) The agreement must establish uniform standards for:

3171

1. The sourcing of transactions to taxing jurisdictions.

3172

2. The administration of exempt sales.

3173

3. Sales and use tax returns and remittances.

3174

3175

registration system that allows a seller to register to collect

3176

and remit sales and use taxes for all member signatory states.

3177

(d) The agreement must provide that registration with the

3178

central registration system and the collection of sales and use

3179

taxes in the signatory state is will not be used as a factor in

3180

determining whether the seller has nexus with a state for any

3181

tax.

3182

(e) The agreement must provide for reduction of the burdens

3183

of complying with local sales and use taxes through:

3184

1. Restricting variances between the state and local tax

3185

bases.

3186

2. Requiring states to administer any sales and use taxes

3187

levied by local jurisdictions within the state so that sellers

3188

who collect and remit these taxes do will not have to register or

3189

file returns with, remit funds to, or be subject to independent

3190

audits from local taxing jurisdictions.

3191

3. Restricting the frequency of changes in the local sales

3192

and use tax rates and setting effective dates for the application

3193

of local jurisdictional boundary changes to local sales and use

3194

taxes.

3195

4. Providing notice of changes in local sales and use tax

3196

rates and of local changes in the boundaries of local taxing

3197

jurisdictions.

3198

(f) The agreement must outline any monetary allowances that

3199

are to be provided by the states to sellers or certified service

3200

providers. The agreement must allow for a joint study by the

3201

public and private sectors, which must be completed by July 1,

3202

2002, of the compliance cost to sellers and certified service

3203

providers of collecting sales and use taxes for state and local

3204

governments under various levels of complexity.

3205

(g) The agreement must require each state to certify

3206

compliance with the terms of the agreement before joining and to

3207

maintain compliance, under the laws of the member state, with all

3208

provisions of the agreement while a member.

3209

(h) The agreement must require each state to adopt a

3210

uniform policy for certified service providers which protects the

3211

privacy of consumers and maintains the confidentiality of tax

3212

information.

3213

(i) The agreement must provide for the appointment of an

3214

advisory council of private sector representatives and an

3215

advisory council of nonmember state representatives to consult

3216

within the administration of the agreement.

3217

(4) For the purposes of reviewing or amending the agreement

3218

to embody the simplification requirements as set forth in

3219

subsection (3), this state shall enter into multistate

3220

discussions. For purposes of such discussions, this state shall

3221

be represented by three delegates, one appointed by the President

3222

of the Senate, one appointed by the Speaker of the House of

3223

Representatives, and the executive director of the department or

3224

his or her designee.

3225

(5) No provision of the agreement authorized by this

3226

section in whole or in part invalidates or amends any provision

3227

of the laws of this state. Adoption of the agreement by this

3228

state does not amend or modify any law of the state.

3229

Implementation of any condition of the agreement in this state,

3230

whether adopted before, at, or after membership of this state in

3231

the agreement, must be by the action of the state.

3232

(6) The agreement authorized by this section is an accord

3233

among individual cooperating sovereigns in furtherance of their

3234

governmental functions and. The agreement provides a mechanism

3235

among the member states to establish and maintain a cooperative,

3236

simplified system for the application and administration of sales

3237

and use taxes under the duly adopted law of each member state.

3238

(7)(a) The agreement authorized by this act binds and

3239

inures only to the benefit of this state and the other member

3240

states. No person, other than a member state, is an intended

3241

beneficiary of the agreement. Any benefit to a person other than

3242

a state is established by the laws of this state and of other

3243

member states and not by the terms of the agreement.

3244

(a)(b) Consistent with paragraph (a), No person has any

3245

cause of action or defense under the agreement or by virtue of

3246

this state's approval of the agreement. No person may challenge,

3247

in any action brought under any provision of law, any action or

3248

inaction by any department, agency, or other instrumentality of

3249

this state, or of any political subdivision of this state, on the

3250

ground that the action or inaction is inconsistent with the

3251

agreement.

3252

(b)(c) No law of this state, or the application thereof,

3253

may be declared invalid as to any person or circumstance on the

3254

ground that the provision or application is inconsistent with the

3255

agreement.

3256

3257

made by the member states are final when rendered and are not

3258

subject to protest, appeal, or review.

3259

(8) Authority to administer the agreement rests with the

3260

governing board comprised of representatives of each member

3261

state. This state shall be represented by three delegates, one

3262

appointed by the President of the Senate, one appointed by the

3263

Speaker of the House of Representatives, and the executive

3264

director of the department or his or her designee.

3265

(9) The agreement shall continue in full force and effect

3266

in this state until this state withdraws its membership or is

3267

expelled. The withdrawal by or expulsion of another state does

3268

not affect the validity of the agreement among this state and

3269

other member states. The state shall submit notice of its intent

3270

to withdraw from the agreement to the governing board and the

3271

chief executive of each member state's tax agency. The state

3272

shall provide public notice of its intent to withdraw and post

3273

its notice on the department's Internet website. The state's

3274

withdrawal or expulsion is not effective until the first day of a

3275

calendar quarter after at least 60 days' notice. The state

3276

remains liable for its share of any financial or contractual

3277

obligations that were incurred by the governing board before the

3278

effective date of that state's withdrawal or expulsion. The

3279

appropriate share of any financial or contractual obligation

3280

shall be determined by the state and the governing board in good

3281

faith based on the relative benefits received and burdens

3282

incurred by the parties.

3283

(10) As a member state, this state agrees to be subject to

3284

sanctions that may be imposed upon a member state that is found

3285

to be out of compliance with the agreement, which include

3286

expulsion or other penalties as determined by the governing

3287

board.

3288

(8)(a) A certified service provider is the agent of a

3289

seller with whom the certified service provider has contracted

3290

for the collection and remittance of sales and use taxes. As the

3291

seller's agent, the certified service provider is liable for

3292

sales and use tax due each member state on all sales transactions

3293

it processes for the seller except as set out in this subsection.

3294

(b) A seller that contracts with a certified service

3295

provider is not liable to the state for sales or use tax due on

3296

transactions processed by the certified service provider unless

3297

the seller has misrepresented the type of items it sells or has

3298

committed fraud. In the absence of probable cause to believe that

3299

the seller has committed fraud or made a material

3300

misrepresentation, the seller is not subject to audit on the

3301

transactions processed by the certified service provider. A

3302

seller is subject to audit for transactions that have not been

3303

processed by the certified service provider. The member states

3304

acting jointly may perform a system check of the seller and

3305

review the seller's procedures to determine if the certified

3306

service provider's system is functioning properly and to

3307

determine the extent to which the seller's transactions are being

3308

processed by the certified service provider.

3309

3310

responsible for the proper functioning of that system and is

3311

liable to the state for underpayments of tax attributable to

3312

errors in the functioning of the certified automated system. A

3313

seller that uses a certified automated system remains responsible

3314

and is liable to the state for reporting and remitting tax.

3315

(d) A seller that has a proprietary system for determining

3316

the amount of tax due on transactions and has signed an agreement

3317

establishing a performance standard for that system is liable for

3318

the failure of the system to meet the performance standard.

3319

(9) Disclosure of information necessary under this section

3320

must be pursuant to a written agreement between the executive

3321

director of the department or his or her designee and the

3322

certified service provider. The certified service provider is

3323

bound by the same requirements of confidentiality as the

3324

department. Breach of confidentiality is a misdemeanor of the

3325

first degree, punishable as provided in s. 775.082 or s. 775.083.

3326

(11)(10) On or before January 1 annually, the department

3327

shall provide recommendations to the President of the Senate, the

3328

Senate Minority Leader, the Speaker of the House of

3329

Representatives, and the Minority Leader of the House of

3330

Representatives for provisions to be adopted for inclusion within

3331

the system which are necessary to bring the system it into

3332

compliance with the Streamlined Sales and Use Tax Agreement.

3333

(12) The state shall annually recertify to the governing

3334

board that it is in compliance with the agreement on or before

3335

August 1 after the year of the state's entry. In its annual

3336

recertification, the state shall include any changes in its laws

3337

or rules or other authorities which may affect its compliance

3338

with the terms of the agreement. The recertification shall be

3339

signed by the executive director of the department. If the state

3340

cannot recertify its compliance with the agreement, it must

3341

submit a statement of noncompliance to the governing board. The

3342

statement of noncompliance must include any action or decision

3343

that takes the state out of compliance with the agreement and the

3344

steps it will take to return to compliance. The state shall post

3345

its annual recertification or statement of noncompliance on the

3346

department's Internet website.

3347

Section 17. Section 213.2565, Florida Statutes, is created

3348

to read:

3349

213.2565 Simplified Sales and Use Tax central registration;

3350

certified service providers; model sellers.--

3351

(1) A seller that registers with the central registration

3352

system agrees to collect and remit sales and use taxes for all

3353

taxable sales into member states, including member states joining

3354

after the seller's registration. Withdrawal or revocation of a

3355

member state does not relieve a seller of its responsibility to

3356

remit taxes previously or subsequently collected on behalf of the

3357

state.

3358

(a) When registering, the seller may select a model 1,

3359

model 2, or model 3 method of remittance or other method allowed

3360

by state law to remit the taxes collected.

3361

(b) A seller may be registered by an agent. Appointment of

3362

the agent must be in writing and a copy submitted to a member

3363

state.

3364

(2) The governing board may certify a person as a certified

3365

service provider if the person meets all of the following

3366

requirements:

3367

(a) Uses a certified automated system.

3368

(b) Integrates its certified automated system with the

3369

system of a seller for whom the person collects tax so that the

3370

tax due on a sale is determined at the time of the sale.

3371

3372

in the manner specified by the member states.

3373

(d) Agrees to file returns on behalf of the sellers for

3374

whom it collects tax.

3375

(e) Agrees to protect the privacy of tax information it

3376

obtains in accordance with s. 213.053.

3377

(f) Enters into a contract with the member states and

3378

agrees to comply with the terms of the contract.

3379

(3) The governing board may certify a software program as a

3380

certified automated system if the governing board determines that

3381

the program meets all of the following requirements:

3382

(a) Determines the applicable state and local sales and use

3383

tax rate for a transaction in accordance with s. 212.06(2) and

3384

(3).

3385

(b) Determines whether or not an item is exempt from tax.

3386

3387

taxpayer for a reporting period.

3388

(d) Is able to generate reports and returns as required by

3389

the governing board.

3390

(e) Meets any other requirement set by the governing board.

3391

(4) A certified service provider is liable for all sales

3392

and use tax due each member state on all sales transactions it

3393

processes for a model 1 seller unless the model 1 seller has

3394

misrepresented the type of items it sells or has committed fraud.

3395

In the absence of probable cause to believe that the seller has

3396

committed fraud or made a material misrepresentation, the model 1

3397

seller is not subject to audit on the transactions processed by

3398

the certified service provider. A model 1 seller is subject to

3399

audit for transactions that have not been processed by the

3400

certified service provider. The member states acting jointly may

3401

perform a system check of the model 1 seller and review the

3402

seller's procedures to determine if the certified service

3403

provider's system is functioning properly and to determine the

3404

extent to which the model 1 seller's transactions are being

3405

processed by the certified service provider.

3406

(5) A person who provides a certified automated system is

3407

responsible for the proper functioning of that system and is

3408

liable to the state for underpayments of tax attributable to

3409

errors in the functioning of the certified automated system. A

3410

model 2 seller who uses a certified automated system remains

3411

responsible and is liable to the state for reporting and

3412

remitting tax.

3413

(6) A model 3 seller is liable for the failure of its

3414

proprietary system to meet performance standards. The governing

3415

board may establish one or more sales tax performance standards

3416

for model 3 sellers who meet the eligibility criteria set by the

3417

governing board and who have developed a proprietary system to

3418

determine the amount of sales and use tax due on transactions.

3419

(7) Disclosure of information necessary under this section

3420

must be made according to a written agreement between the

3421

executive director of the department or his or her designee and

3422

the certified service provider. The certified service provider is

3423

bound by the same requirements of confidentiality as the

3424

department. Breach of confidentiality is a misdemeanor of the

3425

first degree, punishable as provided in s. 775.082 or s. 775.083.

3426

Section 18. Subsection (6) of section 196.012, Florida

3427

Statutes, is amended to read:

3428

196.012 Definitions.--For the purpose of this chapter, the

3429

following terms are defined as follows, except where the context

3430

clearly indicates otherwise:

3431

(6) Governmental, municipal, or public purpose or function

3432

shall be deemed to be served or performed if when the lessee

3433

under a any leasehold interest created in property of the United

3434

States, the state or any of its political subdivisions, or any

3435

municipality, agency, special district, authority, or other

3436

public body corporate of the state is demonstrated to perform a

3437

function or serve a governmental purpose that which could

3438

properly be performed or served by an appropriate governmental

3439

unit or which is demonstrated to perform a function or serve a

3440

purpose which would otherwise be a valid subject for the

3441

allocation of public funds. For purposes of this subsection the

3442

preceding sentence, an activity undertaken by a lessee which is

3443

authorized permitted under the terms of its lease of real

3444

property designated as an aviation area on an airport layout plan

3445

that which has been approved by the Federal Aviation

3446

Administration and which real property is used for the

3447

administration, operation, business offices and activities

3448

related to specifically thereto in connection with the conduct of

3449

an aircraft full service fixed base operation that which provides

3450

goods and services to the general aviation public in the

3451

promotion of air commerce, shall be deemed an activity that which

3452

serves a governmental, municipal, or public purpose or function.

3453

Any activity undertaken by a lessee which is authorized permitted

3454

under the terms of its lease of real property designated as a

3455

public airport as defined in s. 332.004(14) by the state or a

3456

political subdivision municipalities, agencies, special

3457

districts, authorities, or other public bodies corporate and

3458

public bodies politic of the state, or a spaceport as defined in

3459

s. 331.303, or which is located in a deepwater port identified in

3460

s. 403.021(9)(b) and owned by one of the foregoing governmental

3461

units, subject to a leasehold or other possessory interest of a

3462

nongovernmental lessee that is deemed to perform an aviation,

3463

airport, aerospace, maritime, or port purpose or operation shall

3464

be deemed an activity that serves a governmental, municipal, or

3465

public purpose or function. The use by a lessee, licensee, or

3466

management company of real property or a portion thereof as a

3467

convention center, visitor center, sports facility with permanent

3468

seating, concert hall, arena, stadium, park, or beach is deemed a

3469

use that serves a governmental, municipal, or public purpose or

3470

function if when access to the property is open to the general

3471

public with or without a charge for admission. If property deeded

3472

to a municipality by the United States is subject to a

3473

requirement that the Federal Government, through a schedule

3474

established by the Secretary of the Interior, determine that the

3475

property is being maintained for public historic preservation,

3476

park, or recreational purposes and if those conditions are not

3477

met the property will revert back to the Federal Government, the

3478

then such property shall be deemed to serve a municipal or public

3479

purpose. The term "governmental purpose" also includes a direct

3480

use of property on federal lands in connection with the Federal

3481

Government's Space Exploration Program or spaceport activities as

3482

defined in s. 212.02 s. 212.02(22). Real property and tangible

3483

personal property owned by the Federal Government or Space

3484

Florida and used for defense and space exploration purposes or

3485

which is put to a use in support thereof shall be deemed to

3486

perform an essential national governmental purpose and shall be

3487

exempt. "Owned by the lessee" as used in this chapter does not

3488

include personal property, buildings, or other real property

3489

improvements used for the administration, operation, business

3490

offices and activities related specifically to thereto in

3491

connection with the conduct of an aircraft full service fixed

3492

based operation that which provides goods and services to the

3493

general aviation public in the promotion of air commerce if

3494

provided that the real property is designated as an aviation area

3495

on an airport layout plan approved by the Federal Aviation

3496

Administration. For purposes of determining ownership,

3497

determination of "ownership," buildings and other real property

3498

improvements that which will revert to the airport authority or

3499

other governmental unit upon expiration of the term of the lease

3500

shall be deemed "owned" by the governmental unit and not the

3501

lessee. Providing two-way telecommunications services to the

3502

public for hire by the use of a telecommunications facility, as

3503

defined in s. 364.02(15), and for which a certificate is required

3504

under chapter 364 does not constitute an exempt use for purposes

3505

of s. 196.199, unless the telecommunications services are

3506

provided by the operator of a public-use airport, as defined in

3507

s. 332.004, for the operator's provision of telecommunications

3508

services for the airport or its tenants, concessionaires, or

3509

licensees, or unless the telecommunications services are provided

3510

by a public hospital.

3511

Section 19. Paragraphs (f), (g), (h), and (i) of subsection

3512

(1) of section 203.01, Florida Statutes, are amended to read:

3513

203.01 Tax on gross receipts for utility and communications

3514

services.--

3515

(1)

3516

(f) Any person who imports into this state electricity,

3517

natural gas, or manufactured gas, or severs natural gas, for that

3518

person's own use or consumption as a substitute for purchasing

3519

utility, transportation, or delivery services taxable under this

3520

chapter and who cannot demonstrate payment of the tax imposed by

3521

this chapter must register with the Department of Revenue and pay

3522

into the State Treasury each month an amount equal to the cost

3523

price of the such electricity, natural gas, or manufactured gas

3524

times the rate set forth in paragraph (b), reduced by the amount

3525

of any like tax lawfully imposed on and paid by the person from

3526

whom the electricity, natural gas, or manufactured gas was

3527

purchased or any person who provided delivery service or

3528

transportation service in connection with the electricity,

3529

natural gas, or manufactured gas. For purposes of this subsection

3530

paragraph, the term "cost price" has the meaning provided in s.

3531

212.02 ascribed in s. 212.02(4). The methods of demonstrating

3532

proof of payment and the amount of such reductions in tax shall

3533

be made according to rules of the Department of Revenue.

3534

(g) Electricity produced by cogeneration or by small power

3535

producers which is transmitted and distributed by a public

3536

utility between two locations of a customer of the utility

3537

pursuant to s. 366.051 is subject to the tax imposed by this

3538

section. The tax shall be applied to the cost price of the such

3539

electricity as provided in s. 212.02(4) and shall be paid each

3540

month by the producer of such electricity.

3541

(h) Electricity produced by cogeneration or by small power

3542

producers during the 12-month period ending June 30 of each year

3543

which is in excess of nontaxable electricity produced during the

3544

12-month period ending June 30, 1990, is subject to the tax

3545

imposed by this section. The tax shall be applied to the cost

3546

price of the such electricity as provided in s. 212.02(4) and

3547

shall be paid each month, beginning with the month in which total

3548

production exceeds the production of nontaxable electricity for

3549

the 12-month period ending June 30, 1990. For purposes of this

3550

paragraph, "nontaxable electricity" means electricity produced by

3551

cogeneration or by small power producers which is not subject to

3552

tax under paragraph (g). Taxes paid pursuant to paragraph (g) may

3553

be credited against taxes due under this paragraph. Electricity

3554

generated as part of an industrial manufacturing process that

3555

which manufactures products from phosphate rock, raw wood fiber,

3556

paper, citrus, or any agricultural product is shall not be

3557

subject to the tax imposed by this paragraph. "Industrial

3558

manufacturing process" means the entire process conducted at the

3559

location where the process takes place.

3560

(i) Any person other than a cogenerator or small power

3561

producer described in paragraph (h) who produces for his or her

3562

own use electrical energy, which is a substitute for electrical

3563

energy produced by an electric utility as defined in s. 366.02,

3564

is subject to the tax imposed by this section. The tax shall be

3565

applied to the cost price of the such electrical energy as

3566

provided in s. 212.02(4) and shall be paid each month. The

3567

provisions of this paragraph do not apply to any electrical

3568

energy produced and used by an electric utility.

3569

Section 20. Paragraph (c) of subsection (7) of section

3570

212.03, Florida Statutes, is amended to read:

3571

212.03 Transient rentals tax; rate, procedure, enforcement,

3572

exemptions.--

3573

(7)

3574

3575

park, or recreational vehicle park, as defined in s.

3576

212.02(10)(f), which are intended primarily for rental as a

3577

principal or permanent place of residence, is exempt from the tax

3578

imposed by this chapter. The rental of such facilities that

3579

primarily serve transient guests is not exempt by this

3580

subsection. In the application of this law, or in making a any

3581

determination against the exemption, the department shall

3582

consider the facility as primarily serving transient guests

3583

unless the facility owner makes a verified declaration on a form

3584

prescribed by the department that more than half of the total

3585

rental units available are occupied by tenants who have a

3586

continuous residence in excess of 3 months. The owner of a

3587

facility declared to be exempt by this paragraph must make a

3588

determination of the taxable status of the facility at the end of

3589

the owner's accounting year using any consecutive 3-month period

3590

at least one month of which is in the accounting year. The owner

3591

must use a selected consecutive 3-month period during each annual

3592

redetermination. If In the event that an exempt facility no

3593

longer qualifies for the exemption by this paragraph, the owner

3594

must notify the department on a form prescribed by the department

3595

by the 20th day of the first month of the owner's next succeeding

3596

accounting year that the facility no longer qualifies for the

3597

such exemption. The tax levied by this section applies shall

3598

apply to the rental of facilities that no longer qualify for the

3599

exemption under this paragraph beginning the first day of the

3600

owner's next succeeding accounting year. The provisions of this

3601

paragraph do not apply to mobile home lots regulated under

3602

chapter 723.

3603

Section 21. Paragraph (a) of subsection (1) of section

3604

212.031, Florida Statutes, is amended to read:

3605

212.031 Tax on rental or license fee for use of real

3606

property.--

3607

(1)(a) It is declared to be the legislative intent that

3608

every person is exercising a taxable privilege who engages in the

3609

business of renting, leasing, letting, or granting a license for

3610

the use of any real property unless the such property is:

3611

1. Assessed as agricultural property under s. 193.461.

3612

2. Used exclusively as dwelling units.

3613

3. Property subject to tax on parking, docking, or storage

3614

spaces under s. 212.03(6).

3615

4. Recreational property or the common elements of a

3616

condominium when subject to a lease between the developer or

3617

owner thereof and the condominium association in its own right or

3618

as agent for the owners of individual condominium units or the

3619

owners of individual condominium units. However, only the lease

3620

payments on such property are shall be exempt from the tax

3621

imposed by this chapter, and any other use made by the owner or

3622

the condominium association is shall be fully taxable under this

3623

chapter.

3624

5. A public or private street or right-of-way and poles,

3625

conduits, fixtures, and similar improvements located on such

3626

streets or rights-of-way, occupied or used by a utility or

3627

provider of communications services, as defined by s. 202.11, for

3628

utility or communications or television purposes. For purposes of

3629

this subparagraph, the term "utility" means any person providing

3630

utility services as defined in s. 203.012. This exception also

3631

applies to property, wherever located, on which the following are

3632

placed: towers, antennas, cables, accessory structures, or

3633

equipment, not including switching equipment, used in the

3634

provision of mobile communications services as defined in s.

3635

202.11. For purposes of this chapter, towers used in the

3636

provision of mobile communications services, as defined in s.

3637

202.11, are considered to be fixtures.

3638

6. A public street or road that which is used for

3639

transportation purposes.

3640

7. Property used at an airport exclusively for the purpose

3641

of aircraft landing or aircraft taxiing or property used by an

3642

airline for the purpose of loading or unloading passengers or

3643

property onto or from aircraft or for fueling aircraft.

3644

8.a. Property used at a port authority, as defined in s.

3645

315.02(2), exclusively for the purpose of oceangoing vessels or

3646

tugs docking, or such vessels mooring on property used by a port

3647

authority for the purpose of loading or unloading passengers or

3648

cargo onto or from such vessels a vessel, or property used at a

3649

port authority for fueling such vessels, or to the extent that

3650

the amount paid for the use of any property at the port is based

3651

on the charge for the amount of tonnage actually imported or

3652

exported through the port by a tenant.

3653

b. The amount charged for the use of any property at the

3654

port in excess of the amount charged for tonnage actually

3655

imported or exported remains shall remain subject to tax except

3656

as provided in sub-subparagraph a.

3657

9. Property used as an integral part of the performance of

3658

qualified production services. As used in this subparagraph, the

3659

term "qualified production services" means any activity or

3660

service performed directly in connection with the production of a

3661

qualified motion picture, as defined in s. 212.06(1)(b), and

3662

includes:

3663

a. Photography, sound and recording, casting, location

3664

managing and scouting, shooting, creation of special and optical

3665

effects, animation, adaptation (language, media, electronic, or

3666

otherwise), technological modifications, computer graphics, set

3667

and stage support (such as electricians, lighting designers and

3668

operators, greensmen, prop managers and assistants, and grips),

3669

wardrobe (design, preparation, and management), hair and makeup

3670

(design, production, and application), performing (such as

3671

acting, dancing, and playing), designing and executing stunts,

3672

coaching, consulting, writing, scoring, composing,

3673

choreographing, script supervising, directing, producing,

3674

transmitting dailies, dubbing, mixing, editing, cutting, looping,

3675

printing, processing, duplicating, storing, and distributing;

3676

b. The design, planning, engineering, construction,

3677

alteration, repair, and maintenance of real or personal property

3678

including stages, sets, props, models, paintings, and facilities

3679

principally required for the performance of those services listed

3680

in sub-subparagraph a.; and

3681

c. Property management services directly related to

3682

property used in connection with the services described in sub-

3683

subparagraphs a. and b.

3684

3685

This exemption inures will inure to the taxpayer upon

3686

presentation of the certificate of exemption issued to the

3687

taxpayer under the provisions of s. 288.1258.

3688

10. Leased, subleased, licensed, or rented to a person

3689

providing food and drink concessionaire services within the

3690

premises of a convention hall, exhibition hall, auditorium,

3691

stadium, theater, arena, civic center, performing arts center,

3692

publicly owned recreational facility, or any business operated

3693

under a permit issued pursuant to chapter 550. A person providing

3694

retail concessionaire services involving the sale of food and

3695

drink or other tangible personal property within the premises of

3696

an airport is shall be subject to tax on the rental of real

3697

property used for that purpose, but is shall not be subject to

3698

the tax on any license to use the property. For purposes of this

3699

subparagraph, the term "sale" does shall not include the leasing

3700

of tangible personal property.

3701

11. Property occupied pursuant to an instrument calling for

3702

payments which the department has declared, in a Technical

3703

Assistance Advisement issued on or before March 15, 1993, to be

3704

nontaxable pursuant to rule 12A-1.070(19)(c), Florida

3705

Administrative Code; however, provided that this subparagraph

3706

applies shall only apply to property occupied by the same person

3707

before and after the execution of the subject instrument and only

3708

to those payments made pursuant to the such instrument, exclusive

3709

of renewals and extensions thereof occurring after March 15,

3710

1993.

3711

12. Rented, leased, subleased, or licensed to a

3712

concessionaire by a convention hall, exhibition hall, auditorium,

3713

stadium, theater, arena, civic center, performing arts center, or

3714

publicly owned recreational facility, during an event at the

3715

facility, to be used by the concessionaire to sell souvenirs,

3716

novelties, or other event-related products. This subparagraph

3717

applies only to that portion of the rental, lease, or license

3718

payment which is based on a percentage of sales and not based on

3719

a fixed price. This subparagraph is repealed July 1, 2009.

3720

13. Property used or occupied predominantly for space

3721

flight business purposes. As used in this subparagraph, "space

3722

flight business" means the manufacturing, processing, or assembly

3723

of a space facility, space propulsion system, space vehicle,

3724

satellite, or station of any kind possessing the capacity for

3725

space flight, as defined in s. 212.02 by s. 212.02(23), or

3726

components thereof, and also means the following activities

3727

supporting space flight: vehicle launch activities, flight

3728

operations, ground control or ground support, and all

3729

administrative activities directly related thereto. Property

3730

shall be deemed to be used or occupied predominantly for space

3731

flight business purposes if more than 50 percent of the property,

3732

or improvements thereon, is used for one or more space flight

3733

business purposes. Possession by a landlord, lessor, or licensor

3734

of a signed written statement from the tenant, lessee, or

3735

licensee claiming the exemption shall relieve the landlord,

3736

lessor, or licensor from the responsibility of collecting the

3737

tax, and the department shall look solely to the tenant, lessee,

3738

or licensee for recovery of the such tax if it determines that

3739

the exemption was not applicable.

3740

Section 22. Paragraph (b) of subsection (1) of section

3741

212.052, Florida Statutes, is amended to read:

3742

212.052 Research or development costs; exemption.--

3743

(1) For the purposes of the exemption provided in this

3744

section:

3745

(b) The term "costs" means cost price as defined in s.

3746

212.02 s. 212.02(4).

3747

Section 23. Subsections (2) and (6) of section 212.0596,

3748

Florida Statutes, are amended to read:

3749

212.0596 Taxation of mail order sales.--

3750

(2) Every dealer as defined in s. 212.06(2)(c) who makes a

3751

mail order sale is subject to the power of this state to levy and

3752

collect the tax imposed by this chapter if when:

3753

(a) The dealer is a corporation doing business under the

3754

laws of this state or a person domiciled in, a resident of, or a

3755

citizen of, this state;

3756

(b) The dealer maintains retail establishments or offices

3757

in this state, whether the mail order sales thus subject to

3758

taxation by this state result from or are related in any other

3759

way to the activities of the such establishments or offices;

3760

3761

business or transact business on behalf of the dealer, whether

3762

the mail order sales thus subject to taxation by this state

3763

result from or are related in any other way to the such

3764

solicitation or transaction of business, except that a printer

3765

who mails or delivers for an out-of-state print purchaser

3766

material the printer printed for it is shall not be deemed to be

3767

the print purchaser's agent for purposes of this paragraph;

3768

(d) The property was delivered in this state in fulfillment

3769

of a sales contract that was entered into in this state, in

3770

accordance with applicable conflict of laws rules, if when a

3771

person in this state accepted an offer by ordering the property;

3772

(e) The dealer, by purposefully or systematically

3773

exploiting the market provided by this state by any media-

3774

assisted, media-facilitated, or media-solicited means, including,

3775

but not limited to, direct mail advertising, unsolicited

3776

distribution of catalogs, computer-assisted shopping, television,

3777

radio, or other electronic media, or magazine or newspaper

3778

advertisements or other media, creates nexus with this state;

3779

(f) Through compact or reciprocity with another

3780

jurisdiction of the United States, that jurisdiction uses its

3781

taxing power and its jurisdiction over the retailer in support of

3782

this state's taxing power;

3783

(g) The dealer consents, expressly or by implication, to

3784

the imposition of the tax imposed by this chapter;

3785

(h) The dealer is subject to service of process under s.

3786

48.181;

3787

(i) The dealer's mail order sales are subject to the power

3788

of this state to tax sales or to require the dealer to collect

3789

use taxes under a federal statute or statutes of the United

3790

States;

3791

(j) The dealer owns real property or tangible personal

3792

property that is physically in this state, except that a dealer

3793

whose only property in this state, including (including property

3794

owned by an affiliate, affiliate) in this state is located at the

3795

premises of a printer with which the vendor has contracted for

3796

printing, and is either a final printed product, or property that

3797

which becomes a part of the final printed product, or property

3798

from which the printed product is produced, is not deemed to own

3799

such property for purposes of this paragraph;

3800

(k) The dealer, while not having nexus with this state on

3801

any of the bases described in paragraphs (a)-(j) or paragraph

3802

(l), is a corporation that is a member of an affiliated group of

3803

corporations, as defined in s. 1504(a) of the Internal Revenue

3804

Code, whose members are includable under s. 1504(b) of the

3805

Internal Revenue Code and whose members are eligible to file a

3806

consolidated tax return for federal corporate income tax purposes

3807

and any parent or subsidiary corporation in the affiliated group

3808

has nexus with this state on one or more of the bases described

3809

in paragraphs (a)-(j) or paragraph (l); or

3810

(l) The dealer or the dealer's activities have sufficient

3811

connection with or relationship to this state or its residents of

3812

some type other than those described in paragraphs (a)-(k) to

3813

create nexus empowering this state to tax its mail order sales or

3814

to require the dealer to collect sales tax or accrue use tax.

3815

(6) Notwithstanding other provisions of law, a dealer who

3816

makes a mail order sale in this state is exempt from collecting

3817

and remitting any local option surtax on the sale, unless the

3818

dealer is located in a county that imposes a discretionary surtax

3819

within the meaning of s. 212.054 s. 212.054(3)(a), the order is

3820

placed through the dealer's location in the such county, and the

3821

property purchased is delivered into such county or into another

3822

county in this state that levies the surtax, in which case the

3823

provisions of s. 212.053(3) s. 212.054(3)(a) are applicable.

3824

Section 24. Section 212.081, Florida Statutes, is amended

3825

to read:

3826

212.081 Legislative intent.--It is hereby declared to be

3827

the legislative intent of the amendments to ss. 212.11(1),

3828

212.12(9) 212.12(10), and 212.20 by chapter 57-398, Laws of

3829

Florida:

3830

(1) To aid in the enforcement of this chapter by

3831

recognizing the effect of court rulings involving such

3832

enforcement and to incorporate herein substantial rulings of the

3833

department which have been recognized as necessary to supplement

3834

the interpretation of some of the terms used in this section.

3835

(2) To arrange the exemptions allowed in this section in

3836

more orderly categories thereby eliminating some of the confusion

3837

attendant upon the present arrangement where cross-exemptions

3838

frequently occur.

3839

(a) It is further declared to be the legislative intent

3840

that the tax levied by this chapter and imposed by this section

3841

is not a tax on motor vehicles as property but a tax on the

3842

privilege to sell, to rent, to use or to store for use in this

3843

state motor vehicles; that such tax is separate from and in

3844

addition to any license tax imposed on motor vehicles; and that

3845

such tax is not intended as an ad valorem tax on motor vehicles

3846

as prohibited by the Constitution.

3847

(b) It is also the legislative intent that there shall be

3848

no pyramiding or duplication of excise taxes levied by the state

3849

under this chapter and no municipality shall levy any excise tax

3850

upon any privilege, admission, lease, rental, sale, use or

3851

storage for use or consumption which is subject to a tax under

3852

this chapter unless permitted by general law; provided, however,

3853

that this provision does shall not impair valid municipal

3854

ordinances that which are in effect and under which a municipal

3855

tax is being levied and collected on July 1, 1957.

3856

(3) It is hereby declared to be the legislative intent that

3857

all purchases made by banks are subject to state sales tax in the

3858

same manner as is provided by law for all other purchasers. It is

3859

also further declared to be the legislative intent that if for

3860

any reason the sales tax on federal banks is declared invalid,

3861

that sales tax does shall not apply or be applicable to purchases

3862

made by state banks.

3863

Section 25. Subsection (3) of section 212.13, Florida

3864

Statutes, is amended to read:

3865

212.13 Records required to be kept; power to inspect; audit

3866

procedure.--

3867

(3) For the purpose of enforcement of this chapter, every

3868

manufacturer and seller of tangible personal property or services

3869

licensed within this state must allow is required to permit the

3870

department to examine his or her books and records at all

3871

reasonable hours, and, upon his or her refusal, the department

3872

may require him or her to allow permit such examination by resort

3873

to the circuit courts of this state, subject however to the right

3874

of removal of the cause to the judicial circuit where the wherein

3875

such person's business is located or wherein such person's books

3876

and records are kept, if the provided further that such person's

3877

books and records are kept within the state. If When the dealer

3878

has made an allocation or attribution pursuant to the definition

3879

of sales price in s. 212.02 s. 212.02(16), the department may

3880

prescribe by rule the books and records that must be made

3881

available during an audit of the dealer's books and records and

3882

examples of methods for determining the reasonableness thereof.

3883

Books and records kept in the regular course of business include,

3884

but are not limited to, general ledgers, price lists, cost

3885

records, customer billings, billing system reports, tariffs, and

3886

other regulatory filings and rules of regulatory authorities. The

3887

records Such record may be required to be made available to the

3888

department in an electronic format if when so kept by the dealer.

3889

The dealer may support the allocation of charges with books and

3890

records kept in the regular course of business covering the

3891

dealer's entire service area, including territories outside this

3892

state. During an audit, the department may reasonably require

3893

production of any additional books and records found necessary to

3894

assist in its determination.

3895

Section 26. Subsection (3) of section 213.015, Florida

3896

Statutes, is amended to read:

3897

213.015 Taxpayer rights.--There is created a Florida

3898

Taxpayer's Bill of Rights to guarantee that the rights, privacy,

3899

and property of Florida taxpayers are adequately safeguarded and

3900

protected during tax assessment, collection, and enforcement

3901

processes administered under the revenue laws of this state. The

3902

Taxpayer's Bill of Rights compiles, in one document, brief but

3903

comprehensive statements which explain, in simple, nontechnical

3904

terms, the rights and obligations of the Department of Revenue

3905

and taxpayers. Section 192.0105 provides additional rights

3906

afforded to payors of property taxes and assessments. The rights

3907

afforded taxpayers to ensure that their privacy and property are

3908

safeguarded and protected during tax assessment and collection

3909

are available only insofar as they are implemented in other parts

3910

of the Florida Statutes or rules of the Department of Revenue.

3911

The rights so guaranteed Florida taxpayers in the Florida

3912

Statutes and the departmental rules are:

3913

(3) The right to be represented or advised by counsel or

3914

other qualified representatives at any time in administrative

3915

interactions with the department, the right to procedural

3916

safeguards with respect to recording of interviews during tax

3917

determination or collection processes conducted by the

3918

department, the right to be treated in a professional manner by

3919

department personnel, and the right to have audits, inspections

3920

of records, and interviews conducted at a reasonable time and

3921

place except in criminal and internal investigations (see ss.

3922

198.06, 199.218, 201.11(1), 203.02, 206.14, 211.125(3),

3923

211.33(3), 212.0305(3), 212.12(5)(a), (6)(a), and (11) (13),

3924

212.13(5), 213.05, 213.21(1)(a) and (c), and 213.34).

3925

Section 27. Subsection (8) of section 551.102, Florida

3926

Statutes, is amended to read:

3927

551.102 Definitions.--As used in this chapter, the term:

3928

(8) "Slot machine" means any mechanical or electrical

3929

contrivance, terminal that may or may not be capable of

3930

downloading slot games from a central server system, machine, or

3931

other device that, upon insertion of a coin, bill, ticket, token,

3932

or similar object or upon payment of any consideration

3933

whatsoever, including the use of an any electronic payment system

3934

except a credit card or debit card, is available to play or

3935

operate, the play or operation of which, whether by reason of

3936

skill or application of the element of chance, or both, may

3937

deliver or entitle the person or persons playing or operating the

3938

contrivance, terminal, machine, or other device to receive cash,

3939

billets, tickets, tokens, or electronic credits to be exchanged

3940

for cash or to receive merchandise or anything of value

3941

whatsoever, whether the payoff is made automatically from the

3942

machine or manually. The term includes associated equipment

3943

necessary to operate conduct the operation of the contrivance,

3944

terminal, machine, or other device. Slot machines may use

3945

spinning reels, video displays, or both. A slot machine is not a

3946

"coin-operated amusement machine" as defined in s. 212.02 s.

3947

212.02(24) or an amusement game or machine as described in s.

3948

849.161, and slot machines are not subject to the tax imposed by

3949

s. 212.05(1)(h).

3950

Section 28. Paragraph (a) of subsection (1) of section

3951

790.0655, Florida Statutes, is amended to read:

3952

790.0655 Purchase and delivery of handguns; mandatory

3953

waiting period; exceptions; penalties.--

3954

(1)(a) There shall be a mandatory 3-day waiting period,

3955

which shall be 3 days, excluding weekends and legal holidays,

3956

between the purchase and the delivery at retail of any handgun.

3957

"Purchase" means the transfer of money or other valuable

3958

consideration to the retailer. "Handgun" means a firearm capable

3959

of being carried and used by one hand, such as a pistol or

3960

revolver. "Retailer" has the same meaning as in s. 212.02 means

3961

and includes every person engaged in the business of making sales

3962

at retail or for distribution, or use, or consumption, or storage

3963

to be used or consumed in this state, as defined in s.

3964

212.02(13).

3965

Section 29. Subsection (6) of section 212.0596, Florida

3966

Statutes, is repealed.

3967

Section 30. It is the intent of the Legislature to urge the

3968

United States Congress to consider providing adequate protections

3969

to small businesses engaging in both offline and online

3970

transactions from added costs, administrative burdens, and

3971

requirements imposed on intermediaries relating to the collection

3972

and remittance of sales and use tax.

3973

Section 31. Emergency rules.--The executive director of the

3974

Department of Revenue is authorized, and all conditions are

3975

deemed met, to adopt emergency rules, under ss. 120.536(1) and

3976

120.54(4), Florida Statutes, to implement this act.

3977

Notwithstanding any other law, the emergency rules shall remain

3978

effective for 6 months after the date of adoption and may be

3979

renewed during the pendency of procedures to adopt rules

3980

addressing the subject of the emergency rules.

3981

Section 32. This act shall take effect July 1, 2008.

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