Florida Senate - 2010                                    SB 1978
       
       
       
       By Senator Altman
       
       
       
       
       24-01297-10                                           20101978__
    1                        A bill to be entitled                      
    2         An act relating to criminal penalties for violations
    3         of tax statutes; amending s. 212.07, F.S.; conforming
    4         a cross-reference; imposing criminal penalties on a
    5         dealer who willfully fails to collect certain taxes or
    6         fees after notice of a duty to collect the taxes or
    7         fees by the Department of Revenue; defining the term
    8         “willful”; specifying authorized means of notice;
    9         amending s. 212.12, F.S.; revising provisions imposing
   10         criminal penalties on a person who makes a false or
   11         fraudulent return with a willful intent to evade
   12         payment of taxes or fees; deleting provisions relating
   13         to criminal penalties for failing to register as a
   14         dealer or to collect tax after notice from the
   15         Department of Revenue; amending s. 212.18, F.S.;
   16         providing criminal penalties for willfully failing to
   17         register as a dealer after notice from the Department
   18         of Revenue; defining the term “willful”; requiring the
   19         department to send written notice of the duty to
   20         register by certain specified means; providing an
   21         effective date.
   22  
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Subsections (1) and (3) of section 212.07,
   26  Florida Statutes, are amended to read:
   27         212.07 Sales, storage, use tax; tax added to purchase
   28  price; dealer not to absorb; liability of purchasers who cannot
   29  prove payment of the tax; penalties; general exemptions.—
   30         (1)(a) The privilege tax herein levied measured by retail
   31  sales shall be collected by the dealers from the purchaser or
   32  consumer.
   33         (b) A resale must be in strict compliance with s. 212.18
   34  and the rules and regulations, and any dealer who makes a sale
   35  for resale which is not in strict compliance with s. 212.18 and
   36  the rules and regulations shall himself or herself be liable for
   37  and pay the tax. Any dealer who makes a sale for resale shall
   38  document the exempt nature of the transaction, as established by
   39  rules promulgated by the department, by retaining a copy of the
   40  purchaser’s resale certificate. In lieu of maintaining a copy of
   41  the certificate, a dealer may document, prior to the time of
   42  sale, an authorization number provided telephonically or
   43  electronically by the department, or by such other means
   44  established by rule of the department. The dealer may rely on a
   45  resale certificate issued pursuant to s. 212.18(3)(d) s.
   46  212.18(3)(c), valid at the time of receipt from the purchaser,
   47  without seeking annual verification of the resale certificate if
   48  the dealer makes recurring sales to a purchaser in the normal
   49  course of business on a continual basis. For purposes of this
   50  paragraph, “recurring sales to a purchaser in the normal course
   51  of business” refers to a sale in which the dealer extends credit
   52  to the purchaser and records the debt as an account receivable,
   53  or in which the dealer sells to a purchaser who has an
   54  established cash or C.O.D. account, similar to an open credit
   55  account. For purposes of this paragraph, purchases are made from
   56  a selling dealer on a continual basis if the selling dealer
   57  makes, in the normal course of business, sales to the purchaser
   58  no less frequently than once in every 12-month period. A dealer
   59  may, through the informal protest provided for in s. 213.21 and
   60  the rules of the Department of Revenue, provide the department
   61  with evidence of the exempt status of a sale. Consumer
   62  certificates of exemption executed by those exempt entities that
   63  were registered with the department at the time of sale, resale
   64  certificates provided by purchasers who were active dealers at
   65  the time of sale, and verification by the department of a
   66  purchaser’s active dealer status at the time of sale in lieu of
   67  a resale certificate shall be accepted by the department when
   68  submitted during the protest period, but may not be accepted in
   69  any proceeding under chapter 120 or any circuit court action
   70  instituted under chapter 72.
   71         (c) Unless the purchaser of tangible personal property that
   72  is incorporated into tangible personal property manufactured,
   73  produced, compounded, processed, or fabricated for one’s own use
   74  and subject to the tax imposed under s. 212.06(1)(b) or is
   75  purchased for export under s. 212.06(5)(a)1. extends a
   76  certificate in compliance with the rules of the department, the
   77  dealer shall himself or herself be liable for and pay the tax.
   78         (3)(a)A Any dealer who fails, neglects, or refuses to
   79  collect the tax or fees imposed under this chapter herein
   80  provided, either by himself or herself or through the dealer’s
   81  agents or employees, is, in addition to the penalty of being
   82  liable for and paying the tax himself or herself, commits guilty
   83  of a misdemeanor of the first degree, punishable as provided in
   84  s. 775.082 or s. 775.083.
   85         (b)A dealer who willfully fails to collect a tax or fee
   86  after the department provides notice of the duty to collect the
   87  tax or fee is liable for a specific penalty of 100 percent of
   88  the uncollected tax or fee. This penalty is in addition to any
   89  other penalty that may be imposed by law. A dealer who willfully
   90  fails to collect taxes or fees totaling:
   91         1. Less than $300:
   92         a. For a first offense, commits a misdemeanor of the second
   93  degree, punishable as provided in s. 775.082 or s. 775.083.
   94         b. For a second offense, commits a misdemeanor of the first
   95  degree, punishable as provided in s. 775.082 or s. 775.083.
   96         c. For a third or subsequent offense, commits a felony of
   97  the third degree, punishable as provided in s. 775.082, s.
   98  775.083, or s. 775.084.
   99         2.Three hundred dollars or more, but less than $20,000,
  100  commits a felony of the third degree, punishable as provided in
  101  s. 775.082, s. 775.083, or s. 775.084.
  102         3. Twenty thousand dollars or more, but less than $100,000,
  103  commits a felony of the second degree, punishable as provided in
  104  s. 775.082, s. 775.083, or s. 775.084.
  105         4.One hundred thousand dollars or more commits a felony of
  106  the first degree, punishable as provided in s. 775.082, s.
  107  775.083, or s. 775.084.
  108         (c)As used in this subsection, the term “willful” means a
  109  voluntary and intentional violation of a known legal duty.
  110         (d) The department shall give written notice of the duty to
  111  collect taxes or fees to the dealer by personal service, by
  112  sending notice to the dealer’s last known address by registered
  113  mail, or by both personal service and mail.
  114         Section 2. Paragraph (d) of subsection (2) of section
  115  212.12, Florida Statutes, is amended to read:
  116         212.12 Dealer’s credit for collecting tax; penalties for
  117  noncompliance; powers of Department of Revenue in dealing with
  118  delinquents; brackets applicable to taxable transactions;
  119  records required.—
  120         (2)
  121         (d) A Any person who makes a false or fraudulent return
  122  with a willful intent to evade payment of any tax or fee imposed
  123  under this chapter is; any person who, after the department’s
  124  delivery of a written notice to the person’s last known address
  125  specifically alerting the person of the requirement to register
  126  the person’s business as a dealer, intentionally fails to
  127  register the business; and any person who, after the
  128  department’s delivery of a written notice to the person’s last
  129  known address specifically alerting the person of the
  130  requirement to collect tax on specific transactions,
  131  intentionally fails to collect such tax, shall, in addition to
  132  the other penalties provided by law, be liable for a specific
  133  penalty of 100 percent of any unreported or any uncollected tax
  134  or fee. This penalty is in addition to any other penalty
  135  provided by law. A person who makes a false or fraudulent return
  136  with a willful intent to evade payment of taxes or fees
  137  totaling:
  138         1. Less than $300:
  139         a.For a first offense, commits a misdemeanor of the second
  140  degree, punishable as provided in s. 775.082 or s. 775.083.
  141         b. For a second offense, commits a misdemeanor of the first
  142  degree, punishable as provided in s. 775.082 or s. 775.083.
  143         c. For a third or subsequent offense, commits a felony of
  144  the third degree, punishable as provided in s. 775.082, s.
  145  775.083, or s. 775.084.
  146         2. Three hundred dollars or more, but less than $20,000,
  147  commits a felony of the third degree, punishable as provided in
  148  s. 775.082, s. 775.083, or s. 775.084.
  149         3. Twenty thousand dollars or more, but less than $100,000,
  150  commits a felony of the second degree, punishable as provided in
  151  s. 775.082, s. 775.083, or s. 775.084.
  152         4. One hundred thousand dollars or more commits a felony of
  153  the first degree, punishable as provided in s. 775.082, s.
  154  775.083, or s. 775.084. and, upon conviction, for fine and
  155  punishment as provided in s. 775.082, s. 775.083, or s. 775.084.
  156  Delivery of written notice may be made by certified mail, or by
  157  the use of such other method as is documented as being necessary
  158  and reasonable under the circumstances. The civil and criminal
  159  penalties imposed herein for failure to comply with a written
  160  notice alerting the person of the requirement to register the
  161  person’s business as a dealer or to collect tax on specific
  162  transactions shall not apply if the person timely files a
  163  written challenge to such notice in accordance with procedures
  164  established by the department by rule or the notice fails to
  165  clearly advise that failure to comply with or timely challenge
  166  the notice will result in the imposition of the civil and
  167  criminal penalties imposed herein.
  168         1.If the total amount of unreported or uncollected taxes
  169  or fees is less than $300, the first offense resulting in
  170  conviction is a misdemeanor of the second degree, the second
  171  offense resulting in conviction is a misdemeanor of the first
  172  degree, and the third and all subsequent offenses resulting in
  173  conviction is a misdemeanor of the first degree, and the third
  174  and all subsequent offenses resulting in conviction are felonies
  175  of the third degree.
  176         2.If the total amount of unreported or uncollected taxes
  177  or fees is $300 or more but less than $20,000, the offense is a
  178  felony of the third degree.
  179         3.If the total amount of unreported or uncollected taxes
  180  or fees is $20,000 or more but less than $100,000, the offense
  181  is a felony of the second degree.
  182         4.If the total amount of unreported or uncollected taxes
  183  or fees is $100,000 or more, the offense is a felony of the
  184  first degree.
  185         Section 3. Subsection (3) of section 212.18, Florida
  186  Statutes, is amended to read:
  187         212.18 Administration of law; registration of dealers;
  188  rules.—
  189         (3)(a) Every person desiring to engage in or conduct
  190  business in this state as a dealer, as defined in this chapter,
  191  or to lease, rent, or let or grant licenses in living quarters
  192  or sleeping or housekeeping accommodations in hotels, apartment
  193  houses, roominghouses, or tourist or trailer camps that are
  194  subject to tax under s. 212.03, or to lease, rent, or let or
  195  grant licenses in real property, as defined in this chapter, and
  196  every person who sells or receives anything of value by way of
  197  admissions, must file with the department an application for a
  198  certificate of registration for each place of business. The
  199  application must include, showing the names of the persons who
  200  have interests in the such business and their residences, the
  201  address of the business, and such other data reasonably required
  202  by as the department may reasonably require. However, owners and
  203  operators of vending machines or newspaper rack machines are
  204  required to obtain only one certificate of registration for each
  205  county in which such machines are located. The department, by
  206  rule, may authorize a dealer that uses independent sellers to
  207  sell its merchandise to remit tax on the retail sales price
  208  charged to the ultimate consumer in lieu of having the
  209  independent seller register as a dealer and remit the tax. The
  210  department may appoint the county tax collector as the
  211  department’s agent to accept applications for registrations. The
  212  application must be made to the department before the person,
  213  firm, copartnership, or corporation may engage in such business,
  214  and it must be accompanied by a registration fee of $5. However,
  215  a registration fee is not required to accompany an application
  216  to engage in or conduct business to make mail order sales. The
  217  department may waive the registration fee for applications
  218  submitted through the department’s Internet registration
  219  process.
  220         (b) The department, upon receipt of such application, shall
  221  will grant to the applicant a separate certificate of
  222  registration for each place of business, which certificate may
  223  be canceled by the department or its designated assistants for
  224  any failure by the certificateholder to comply with any of the
  225  provisions of this chapter. The certificate is not assignable
  226  and is valid only for the person, firm, copartnership, or
  227  corporation to which issued. The certificate must be placed in a
  228  conspicuous place in the business or businesses for which it is
  229  issued and must be displayed at all times. Except as provided in
  230  this subsection, a no person may not shall engage in business as
  231  a dealer or in leasing, renting, or letting of or granting
  232  licenses in living quarters or sleeping or housekeeping
  233  accommodations in hotels, apartment houses, roominghouses,
  234  tourist or trailer camps, or real property or as hereinbefore
  235  defined, nor shall any person sell or receive anything of value
  236  by way of admissions, without a valid first having obtained such
  237  a certificate. A or after such certificate has been canceled; no
  238  person may not shall receive a any license from any authority
  239  within the state to engage in any such business without a valid
  240  first having obtained such a certificate or after such
  241  certificate has been canceled. A person may not engage The
  242  engaging in the business of selling or leasing tangible personal
  243  property or services or as a dealer; engage, as defined in this
  244  chapter, or the engaging in leasing, renting, or letting of or
  245  granting licenses in living quarters or sleeping or housekeeping
  246  accommodations in hotels, apartment houses, roominghouses, or
  247  tourist or trailer camps that are taxable under this chapter, or
  248  real property;, or engage the engaging in the business of
  249  selling or receiving anything of value by way of admissions,
  250  without a valid such certificate first being obtained or after
  251  such certificate has been canceled by the department, is
  252  prohibited.
  253         (c)1. A The failure or refusal of any person who engages in
  254  acts requiring a certificate of registration under this
  255  subsection and who fails or refuses to register, commits, firm,
  256  copartnership, or corporation to so qualify when required
  257  hereunder is a misdemeanor of the first degree, punishable as
  258  provided in s. 775.082 or s. 775.083. Such acts are, or subject
  259  to injunctive proceedings as provided by law. A person who
  260  engages in acts requiring a certificate of registration and who
  261  fails or refuses to register is also subject Such failure or
  262  refusal also subjects the offender to a $100 initial
  263  registration fee in lieu of the $5 registration fee required by
  264  authorized in paragraph (a). However, the department may waive
  265  the increase in the registration fee if it finds is determined
  266  by the department that the failure to register was due to
  267  reasonable cause and not to willful negligence, willful neglect,
  268  or fraud.
  269         2. A person who willfully fails to register after the
  270  department provides notice of the duty to register as a dealer
  271  commits a felony of the third degree, punishable as provided in
  272  s. 775.082, s. 775.083, or s. 775.084.
  273         a. As used in this subsection, the term “willful” means a
  274  voluntary and intentional violation of a known legal duty.
  275         b. The department shall give written notice of the duty to
  276  register to the person by personal service, by sending notice by
  277  registered mail to the person’s last known address, or by both
  278  personal service and mail.
  279         (d)(c) In addition to the certificate of registration, the
  280  department shall provide to each newly registered dealer an
  281  initial resale certificate that will be valid for the remainder
  282  of the period of issuance. The department shall provide each
  283  active dealer with an annual resale certificate. For purposes of
  284  this section, “active dealer” means a person who is currently
  285  registered with the department and who is required to file at
  286  least once during each applicable reporting period.
  287         (e)(d) The department may revoke a any dealer’s certificate
  288  of registration if when the dealer fails to comply with this
  289  chapter. Prior to revocation of a dealer’s certificate of
  290  registration, the department must schedule an informal
  291  conference at which the dealer may present evidence regarding
  292  the department’s intended revocation or enter into a compliance
  293  agreement with the department. The department must notify the
  294  dealer of its intended action and the time, place, and date of
  295  the scheduled informal conference by written notification sent
  296  by United States mail to the dealer’s last known address of
  297  record furnished by the dealer on a form prescribed by the
  298  department. The dealer is required to attend the informal
  299  conference and present evidence refuting the department’s
  300  intended revocation or enter into a compliance agreement with
  301  the department which resolves the dealer’s failure to comply
  302  with this chapter. The department shall issue an administrative
  303  complaint under s. 120.60 if the dealer fails to attend the
  304  department’s informal conference, fails to enter into a
  305  compliance agreement with the department resolving the dealer’s
  306  noncompliance with this chapter, or fails to comply with the
  307  executed compliance agreement.
  308         (f)(e) As used in this paragraph, the term “exhibitor”
  309  means a person who enters into an agreement authorizing the
  310  display of tangible personal property or services at a
  311  convention or a trade show. The following provisions apply to
  312  the registration of exhibitors as dealers under this chapter:
  313         1. An exhibitor whose agreement prohibits the sale of
  314  tangible personal property or services subject to the tax
  315  imposed in this chapter is not required to register as a dealer.
  316         2. An exhibitor whose agreement provides for the sale at
  317  wholesale only of tangible personal property or services subject
  318  to the tax imposed in this chapter must obtain a resale
  319  certificate from the purchasing dealer but is not required to
  320  register as a dealer.
  321         3. An exhibitor whose agreement authorizes the retail sale
  322  of tangible personal property or services subject to the tax
  323  imposed in this chapter must register as a dealer and collect
  324  the tax imposed under this chapter on such sales.
  325         4. Any exhibitor who makes a mail order sale pursuant to s.
  326  212.0596 must register as a dealer.
  327  
  328  Any person who conducts a convention or a trade show must make
  329  their exhibitor’s agreements available to the department for
  330  inspection and copying.
  331         Section 4. This act shall take effect upon becoming a law.