| 1 | A bill to be entitled |
| 2 | An act relating to the tax on sales, use, and other |
| 3 | transactions; amending s. 212.05, F.S.; providing an |
| 4 | alternative rate of taxation on sales of aircraft; |
| 5 | amending s. 212.02, F.S.; defining the term "fractional |
| 6 | aircraft ownership program"; creating s. 212.0597, F.S.; |
| 7 | providing a maximum tax on the sale or use of fractional |
| 8 | aircraft ownership interests; providing applicability; |
| 9 | amending s. 212.08, F.S.; exempting from the use tax |
| 10 | aircraft owned by nonresidents and entering and remaining |
| 11 | in the state for certain purposes under certain |
| 12 | circumstances; providing tax exemptions on the sale or use |
| 13 | of aircraft primarily used in a fractional aircraft |
| 14 | ownership program and any parts and labor used in the |
| 15 | completion, maintenance, repair, and overhaul of such |
| 16 | aircraft; providing an effective date. |
| 17 |
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| 18 | Be It Enacted by the Legislature of the State of Florida: |
| 19 |
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| 20 | Section 1. Paragraph (a) of subsection (1) of section |
| 21 | 212.05, Florida Statutes, is amended to read: |
| 22 | 212.05 Sales, storage, use tax.--It is hereby declared to |
| 23 | be the legislative intent that every person is exercising a |
| 24 | taxable privilege who engages in the business of selling |
| 25 | tangible personal property at retail in this state, including |
| 26 | the business of making mail order sales, or who rents or |
| 27 | furnishes any of the things or services taxable under this |
| 28 | chapter, or who stores for use or consumption in this state any |
| 29 | item or article of tangible personal property as defined herein |
| 30 | and who leases or rents such property within the state. |
| 31 | (1) For the exercise of such privilege, a tax is levied on |
| 32 | each taxable transaction or incident, which tax is due and |
| 33 | payable as follows: |
| 34 | (a)1.a. At the rate of 6 percent of the sales price of |
| 35 | each item or article of tangible personal property when sold at |
| 36 | retail in this state, computed on each taxable sale for the |
| 37 | purpose of remitting the amount of tax due the state, and |
| 38 | including each and every retail sale, except that the tax rate |
| 39 | on sales of aircraft shall be at the rate of 3 percent of the |
| 40 | sales price of the aircraft. |
| 41 | b. Each occasional or isolated sale of an aircraft, boat, |
| 42 | mobile home, or motor vehicle of a class or type which is |
| 43 | required to be registered, licensed, titled, or documented in |
| 44 | this state or by the United States Government shall be subject |
| 45 | to tax at the rate provided in this paragraph. The department |
| 46 | shall by rule adopt any nationally recognized publication for |
| 47 | valuation of used motor vehicles as the reference price list for |
| 48 | any used motor vehicle which is required to be licensed pursuant |
| 49 | to s. 320.08(1), (2), (3)(a), (b), (c), or (e), or (9). If any |
| 50 | party to an occasional or isolated sale of such a vehicle |
| 51 | reports to the tax collector a sales price which is less than 80 |
| 52 | percent of the average loan price for the specified model and |
| 53 | year of such vehicle as listed in the most recent reference |
| 54 | price list, the tax levied under this paragraph shall be |
| 55 | computed by the department on such average loan price unless the |
| 56 | parties to the sale have provided to the tax collector an |
| 57 | affidavit signed by each party, or other substantial proof, |
| 58 | stating the actual sales price. Any party to such sale who |
| 59 | reports a sales price less than the actual sales price is guilty |
| 60 | of a misdemeanor of the first degree, punishable as provided in |
| 61 | s. 775.082 or s. 775.083. The department shall collect or |
| 62 | attempt to collect from such party any delinquent sales taxes. |
| 63 | In addition, such party shall pay any tax due and any penalty |
| 64 | and interest assessed plus a penalty equal to twice the amount |
| 65 | of the additional tax owed. Notwithstanding any other provision |
| 66 | of law, the Department of Revenue may waive or compromise any |
| 67 | penalty imposed pursuant to this subparagraph. |
| 68 | 2. This paragraph does not apply to the sale of a boat or |
| 69 | aircraft by or through a registered dealer under this chapter to |
| 70 | a purchaser who, at the time of taking delivery, is a |
| 71 | nonresident of this state, does not make his or her permanent |
| 72 | place of abode in this state, and is not engaged in carrying on |
| 73 | in this state any employment, trade, business, or profession in |
| 74 | which the boat or aircraft will be used in this state, or is a |
| 75 | corporation none of the officers or directors of which is a |
| 76 | resident of, or makes his or her permanent place of abode in, |
| 77 | this state, or is a noncorporate entity that has no individual |
| 78 | vested with authority to participate in the management, |
| 79 | direction, or control of the entity's affairs who is a resident |
| 80 | of, or makes his or her permanent abode in, this state. For |
| 81 | purposes of this exemption, either a registered dealer acting on |
| 82 | his or her own behalf as seller, a registered dealer acting as |
| 83 | broker on behalf of a seller, or a registered dealer acting as |
| 84 | broker on behalf of the purchaser may be deemed to be the |
| 85 | selling dealer. This exemption shall not be allowed unless: |
| 86 | a. The purchaser removes a qualifying boat, as described |
| 87 | in sub-subparagraph f., from the state within 90 days after the |
| 88 | date of purchase or the purchaser removes a nonqualifying boat |
| 89 | or an aircraft from this state within 10 days after the date of |
| 90 | purchase or, when the boat or aircraft is repaired or altered, |
| 91 | within 20 days after completion of the repairs or alterations; |
| 92 | b. The purchaser, within 30 days from the date of |
| 93 | departure, shall provide the department with written proof that |
| 94 | the purchaser licensed, registered, titled, or documented the |
| 95 | boat or aircraft outside the state. If such written proof is |
| 96 | unavailable, within 30 days the purchaser shall provide proof |
| 97 | that the purchaser applied for such license, title, |
| 98 | registration, or documentation. The purchaser shall forward to |
| 99 | the department proof of title, license, registration, or |
| 100 | documentation upon receipt. |
| 101 | c. The purchaser, within 10 days of removing the boat or |
| 102 | aircraft from Florida, shall furnish the department with proof |
| 103 | of removal in the form of receipts for fuel, dockage, slippage, |
| 104 | tie-down, or hangaring from outside of Florida. The information |
| 105 | so provided must clearly and specifically identify the boat or |
| 106 | aircraft; |
| 107 | d. The selling dealer, within 5 days of the date of sale, |
| 108 | shall provide to the department a copy of the sales invoice, |
| 109 | closing statement, bills of sale, and the original affidavit |
| 110 | signed by the purchaser attesting that he or she has read the |
| 111 | provisions of this section; |
| 112 | e. The seller makes a copy of the affidavit a part of his |
| 113 | or her record for as long as required by s. 213.35; and |
| 114 | f. Unless the nonresident purchaser of a boat of 5 net |
| 115 | tons of admeasurement or larger intends to remove the boat from |
| 116 | this state within 10 days after the date of purchase or when the |
| 117 | boat is repaired or altered, within 20 days after completion of |
| 118 | the repairs or alterations, the nonresident purchaser shall |
| 119 | apply to the selling dealer for a decal which authorizes 90 days |
| 120 | after the date of purchase for removal of the boat. The |
| 121 | department is authorized to issue decals in advance to dealers. |
| 122 | The number of decals issued in advance to a dealer shall be |
| 123 | consistent with the volume of the dealer's past sales of boats |
| 124 | which qualify under this sub-subparagraph. The selling dealer or |
| 125 | his or her agent shall mark and affix the decals to qualifying |
| 126 | boats in the manner prescribed by the department, prior to |
| 127 | delivery of the boat. |
| 128 | (I) The department is hereby authorized to charge dealers |
| 129 | a fee sufficient to recover the costs of decals issued. |
| 130 | (II) The proceeds from the sale of decals will be |
| 131 | deposited into the administrative trust fund. |
| 132 | (III) Decals shall display information to identify the |
| 133 | boat as a qualifying boat under this sub-subparagraph, |
| 134 | including, but not limited to, the decal's date of expiration. |
| 135 | (IV) The department is authorized to require dealers who |
| 136 | purchase decals to file reports with the department and may |
| 137 | prescribe all necessary records by rule. All such records are |
| 138 | subject to inspection by the department. |
| 139 | (V) Any dealer or his or her agent who issues a decal |
| 140 | falsely, fails to affix a decal, mismarks the expiration date of |
| 141 | a decal, or fails to properly account for decals will be |
| 142 | considered prima facie to have committed a fraudulent act to |
| 143 | evade the tax and will be liable for payment of the tax plus a |
| 144 | mandatory penalty of 200 percent of the tax, and shall be liable |
| 145 | for fine and punishment as provided by law for a conviction of a |
| 146 | misdemeanor of the first degree, as provided in s. 775.082 or s. |
| 147 | 775.083. |
| 148 | (VI) Any nonresident purchaser of a boat who removes a |
| 149 | decal prior to permanently removing the boat from the state, or |
| 150 | defaces, changes, modifies, or alters a decal in a manner |
| 151 | affecting its expiration date prior to its expiration, or who |
| 152 | causes or allows the same to be done by another, will be |
| 153 | considered prima facie to have committed a fraudulent act to |
| 154 | evade the tax and will be liable for payment of the tax plus a |
| 155 | mandatory penalty of 200 percent of the tax, and shall be liable |
| 156 | for fine and punishment as provided by law for a conviction of a |
| 157 | misdemeanor of the first degree, as provided in s. 775.082 or s. |
| 158 | 775.083. |
| 159 | (VII) The department is authorized to adopt rules |
| 160 | necessary to administer and enforce this subparagraph and to |
| 161 | publish the necessary forms and instructions. |
| 162 | (VIII) The department is hereby authorized to adopt |
| 163 | emergency rules pursuant to s. 120.54(4) to administer and |
| 164 | enforce the provisions of this subparagraph. |
| 165 |
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| 166 | If the purchaser fails to remove the qualifying boat from this |
| 167 | state within 90 days after purchase or a nonqualifying boat or |
| 168 | an aircraft from this state within 10 days after purchase or, |
| 169 | when the boat or aircraft is repaired or altered, within 20 days |
| 170 | after completion of such repairs or alterations, or permits the |
| 171 | boat or aircraft to return to this state within 6 months from |
| 172 | the date of departure, except as provided in s. 212.08(7)(ggg), |
| 173 | or if the purchaser fails to furnish the department with any of |
| 174 | the documentation required by this subparagraph within the |
| 175 | prescribed time period, the purchaser shall be liable for use |
| 176 | tax on the cost price of the boat or aircraft and, in addition |
| 177 | thereto, payment of a penalty to the Department of Revenue equal |
| 178 | to the tax payable. This penalty shall be in lieu of the penalty |
| 179 | imposed by s. 212.12(2) and is mandatory and shall not be waived |
| 180 | by the department. The 90-day period following the sale of a |
| 181 | qualifying boat tax-exempt to a nonresident may not be tolled |
| 182 | for any reason. Notwithstanding other provisions of this |
| 183 | paragraph to the contrary, an aircraft purchased in this state |
| 184 | under the provisions of this paragraph may be returned to this |
| 185 | state for repairs within 6 months after the date of its |
| 186 | departure without being in violation of the law and without |
| 187 | incurring liability for the payment of tax or penalty on the |
| 188 | purchase price of the aircraft if the aircraft is removed from |
| 189 | this state within 20 days after the completion of the repairs |
| 190 | and if such removal can be demonstrated by invoices for fuel, |
| 191 | tie-down, hangar charges issued by out-of-state vendors or |
| 192 | suppliers, or similar documentation. |
| 193 | Section 2. Subsection (34) is added to section 212.02, |
| 194 | Florida Statutes, to read: |
| 195 | 212.02 Definitions.--The following terms and phrases when |
| 196 | used in this chapter have the meanings ascribed to them in this |
| 197 | section, except where the context clearly indicates a different |
| 198 | meaning: |
| 199 | (34) "Fractional aircraft ownership program" means a |
| 200 | program that meets the requirements of 14 C.F.R. part 91, |
| 201 | subpart K, relating to fractional ownership operations, except |
| 202 | the program must include a minimum of 25 aircraft owned or |
| 203 | leased by the business or affiliated group, as defined by s. |
| 204 | 1504(a) of the Internal Revenue Code, providing the program. |
| 205 | Such aircraft must be used in the fractional aircraft ownership |
| 206 | program providing the program. |
| 207 | Section 3. Section 212.0597, Florida Statutes, is created |
| 208 | to read: |
| 209 | 212.0597 Maximum tax on fractional aircraft ownership |
| 210 | interests.--The tax imposed under this chapter, including any |
| 211 | discretionary sales surtax under s. 212.055, is limited to $300 |
| 212 | on the sale or use in this state of a fractional ownership |
| 213 | interest in aircraft pursuant to a fractional aircraft ownership |
| 214 | program. This maximum tax applies to the total consideration |
| 215 | paid for the fractional ownership interest, including any |
| 216 | amounts paid by the fractional owner as monthly management or |
| 217 | maintenance fees. The maximum tax applies only if the fractional |
| 218 | ownership interest is sold by or to the operator of the |
| 219 | fractional aircraft ownership program or if the fractional |
| 220 | ownership interest is transferred upon the approval of the |
| 221 | operator of the fractional aircraft ownership program. |
| 222 | Section 4. Paragraphs (ggg) and (hhh) are added to |
| 223 | subsection (7) of section 212.08, Florida Statutes, to read: |
| 224 | 212.08 Sales, rental, use, consumption, distribution, and |
| 225 | storage tax; specified exemptions.--The sale at retail, the |
| 226 | rental, the use, the consumption, the distribution, and the |
| 227 | storage to be used or consumed in this state of the following |
| 228 | are hereby specifically exempt from the tax imposed by this |
| 229 | chapter. |
| 230 | (7) MISCELLANEOUS EXEMPTIONS.--Exemptions provided to any |
| 231 | entity by this chapter do not inure to any transaction that is |
| 232 | otherwise taxable under this chapter when payment is made by a |
| 233 | representative or employee of the entity by any means, |
| 234 | including, but not limited to, cash, check, or credit card, even |
| 235 | when that representative or employee is subsequently reimbursed |
| 236 | by the entity. In addition, exemptions provided to any entity by |
| 237 | this subsection do not inure to any transaction that is |
| 238 | otherwise taxable under this chapter unless the entity has |
| 239 | obtained a sales tax exemption certificate from the department |
| 240 | or the entity obtains or provides other documentation as |
| 241 | required by the department. Eligible purchases or leases made |
| 242 | with such a certificate must be in strict compliance with this |
| 243 | subsection and departmental rules, and any person who makes an |
| 244 | exempt purchase with a certificate that is not in strict |
| 245 | compliance with this subsection and the rules is liable for and |
| 246 | shall pay the tax. The department may adopt rules to administer |
| 247 | this subsection. |
| 248 | (ggg) Aircraft temporarily in the state.-- |
| 249 | 1. An aircraft owned by a person who is not a resident of |
| 250 | this state is exempt from the use tax imposed under this chapter |
| 251 | if the aircraft enters and remains in this state for less than a |
| 252 | total of 21 days during the 6-month period after the date of |
| 253 | purchase. The temporary use of the aircraft and subsequent |
| 254 | removal from this state may be proven by invoices for fuel or |
| 255 | tie-down or hangar charges issued by out-of-state vendors or |
| 256 | suppliers or similar documentation that clearly and specifically |
| 257 | identifies the aircraft. The exemption provided by this |
| 258 | subparagraph shall be in addition to the provisions of |
| 259 | subparagraph 2. and s. 212.05(1)(a). |
| 260 | 2. An aircraft owned by a person who is not a resident of |
| 261 | this state is exempt from the use tax imposed under this chapter |
| 262 | if the aircraft enters or remains in this state exclusively for |
| 263 | purposes of flight training, repairs, alterations, refitting, or |
| 264 | modification. Such flight training, repairs, alterations, |
| 265 | refitting, or modification shall be supported by written |
| 266 | documentation issued by in-state vendors or suppliers which |
| 267 | clearly and specifically identifies the aircraft. The exemption |
| 268 | provided by this subparagraph shall be in addition to the |
| 269 | provisions of subparagraph 1. and s. 212.05(1)(a). |
| 270 | (hhh) Fractional aircraft ownership programs.--Also exempt |
| 271 | from the tax imposed by this chapter is the sale or use of |
| 272 | aircraft primarily used in a fractional aircraft ownership |
| 273 | program and any parts or labor used in the completion, |
| 274 | maintenance, repair, or overhaul of such aircraft. The exemption |
| 275 | is not allowed unless the purchaser or lessee furnishes the |
| 276 | dealer with a certificate stating that the lease, purchase, |
| 277 | repair, or maintenance to be exempted is for aircraft primarily |
| 278 | used in a fractional aircraft ownership program and that the |
| 279 | purchaser or lessee qualifies for the exemption. If a purchaser |
| 280 | or lessee makes tax-exempt purchases on a continual basis, the |
| 281 | purchaser or lessee may allow the dealer to keep the certificate |
| 282 | on file. The purchaser or lessee must inform the dealer that has |
| 283 | the certificate on file if the purchaser or lessee no longer |
| 284 | qualifies for the exemption. The department shall determine the |
| 285 | format of the certificate. |
| 286 | Section 5. This act shall take effect July 1, 2009. |