1 | A bill to be entitled |
2 | An act relating to taxation; directing the Department of |
3 | Revenue to develop and implement an amnesty program for |
4 | taxpayers subject to the state and local taxes imposed by |
5 | chapters 125, 175, 185, 198, 199, 201, 202, 203, 206, 211, |
6 | 212, 220, 221, 252, 336, 376, 403, 624, 627, 629, and 681, |
7 | F.S., and required to be paid to the Department of |
8 | Revenue; providing time periods; providing program |
9 | guidelines; providing for eligible participants; providing |
10 | for waiver of penalties and interest under specified |
11 | circumstances; providing for emergency rules; providing an |
12 | appropriation; amending s. 213.053, F.S.; providing that |
13 | the department may release confidential taxpayer |
14 | information relating to a corporation having an |
15 | outstanding tax warrant to the Department of Business and |
16 | Professional Regulation; authorizing the department to |
17 | publish a list of taxpayers against whom it has filed a |
18 | warrant, notice of lien, or judgment lien certificate; |
19 | requiring the department to update the list at least |
20 | monthly; authorizing the department to adopt rules; |
21 | authorizing the department to provide confidential |
22 | taxpayer information relating to collections from |
23 | taxpayers against whom it has taken a collection action; |
24 | amending s. 213.50, F.S.; authorizing the Division of |
25 | Hotels and Restaurants of the Department of Business and |
26 | Professional Regulation to revoke or deny the renewal of a |
27 | license to operate a public lodging establishment or |
28 | public food service establishment under certain |
29 | circumstances; creating s. 213.692, F.S.; authorizing the |
30 | Department of Revenue to revoke all certificates of |
31 | registration, permits, or licenses issued to a taxpayer |
32 | against whose property the department has filed a warrant, |
33 | notice of lien, or judgment lien certificate; requiring |
34 | the scheduling of an informal conference before revocation |
35 | of the certificates of registration, permits, or licenses; |
36 | prohibiting the Department of Revenue from issuing a |
37 | certificate of registration, permit, or license to a |
38 | taxpayer whose certificate of registration, permit, or |
39 | license has been revoked; providing exceptions; requiring |
40 | security as a condition of issuing a new certificate of |
41 | registration to a person whose certificate of |
42 | registration, permit, or license has been revoked after |
43 | the filing of a warrant, notice of lien, or judgment lien |
44 | certificate; authorizing the department to adopt rules, |
45 | including emergency rules; creating s. 213.758, F.S.; |
46 | defining terms; providing for the transfer of tax |
47 | liabilities to the transferee of a business or a stock of |
48 | goods under certain circumstances; providing exceptions; |
49 | requiring a taxpayer who quits a business to file a final |
50 | tax return; authorizing the Department of Legal Affairs to |
51 | seek injunctions to prevent business activities until |
52 | taxes are paid; requiring the transferor of a business or |
53 | stock of goods to file a final tax return and make a full |
54 | tax payment after a transfer; authorizing a transferee of |
55 | a business or stock of goods to withhold a portion of the |
56 | consideration for the transfer for the payment of certain |
57 | taxes; authorizing the Department of Legal Affairs to seek |
58 | an injunction to prevent business activities by a |
59 | transferee until the taxes are paid; providing that the |
60 | transferees are jointly and severally liable with the |
61 | transferor for the payment of taxes, interest, or |
62 | penalties under certain circumstances; limiting the |
63 | transferee's liability to the value or purchase price of |
64 | the transferred property; specifying a time period within |
65 | which a transferee may file certain actions; providing no |
66 | liability to a transferee for a an involuntary transfer; |
67 | authorizing the Department of Revenue to adopt rules; |
68 | authorizing full-time equivalent positions and providing |
69 | an appropriation for the purpose of conducting audits and |
70 | tax collection services in the Department of Revenue; |
71 | providing an effective date. |
72 |
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73 | Be It Enacted by the Legislature of the State of Florida: |
74 |
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75 | Section 1. (1) No later than July 1, 2010, the Department |
76 | of Revenue shall develop and implement an amnesty program for |
77 | taxpayers subject to the state and local taxes imposed by |
78 | chapters 125, 175, 185, 198, 199, 201, 202, 203, 206, 211, 212, |
79 | 220, 221, 252, 336, 376, 403, 624, 627, 629, and 681, Florida |
80 | Statutes. |
81 | (2) The amnesty program shall be a one-time opportunity |
82 | for eligible taxpayers to satisfy their tax liabilities under |
83 | the revenue laws of this state and thereby avoid criminal |
84 | prosecution, penalties, and interest as provided in subsections |
85 | (5), (6), and (7). Any taxpayer that has entered into a |
86 | settlement of liability for state or local option taxes before |
87 | July 1, 2010, whether or not full and complete payment of the |
88 | settlement amount has been made, is not eligible to participate |
89 | in the amnesty program. |
90 | (3) The amnesty program shall be in effect for a 3-month |
91 | period beginning on July 1, 2010, and ending on September 30, |
92 | 2010. The amnesty program shall apply only to tax liabilities |
93 | due prior to July 1, 2010. In order to participate in the |
94 | amnesty program, eligible taxpayers must file the forms and |
95 | other documentation specified by the Department of Revenue, |
96 | including, but not limited to, returns and amended returns, and |
97 | must make full payment of tax due, the interest due as provided |
98 | in subsections (5) and (6), and the administrative collection |
99 | processing fee imposed pursuant to s. 213.24, Florida Statutes. |
100 | (4) The administrative collection processing fee imposed |
101 | pursuant to s. 213.24, Florida Statutes, shall be calculated on |
102 | the tax, penalty, and interest due before the reductions allowed |
103 | by the amnesty program. |
104 | (5) A taxpayer may participate in the amnesty program |
105 | whether or not the taxpayer is under audit, inquiry, |
106 | examination, or civil investigation initiated by the Department |
107 | of Revenue, regardless of whether the amount due is included in |
108 | a proposed assessment or an assessment, bill, notice, or demand |
109 | for payment issued by the Department of Revenue, and without |
110 | regard to whether the amount due is subject to a pending |
111 | administrative or judicial proceeding. If any of the |
112 | circumstances set forth in this subsection apply, the taxpayer |
113 | shall pay the full amount of the tax due and 75 percent of the |
114 | amount of interest due. When the department has issued a notice |
115 | of intent to conduct an audit to a taxpayer but has not |
116 | commenced the audit, the taxpayer may apply to the department |
117 | during the amnesty program for approval to have the audit |
118 | converted to the certified audits program authorized by s. |
119 | 213.285, Florida Statutes. When a taxpayer has been approved |
120 | during the amnesty program to have an audit converted to the |
121 | certified audits program, payment of any liability determined as |
122 | a result of this participation in the certified audits program |
123 | must be made during the period the amnesty program is in effect. |
124 | A taxpayer that is participating in the certified audits program |
125 | authorized by s. 213.285, Florida Statutes, is eligible for the |
126 | interest and penalty compromises authorized by the amnesty |
127 | program or the certified audits program, but not both. |
128 | (6) If the circumstances set forth in subsection (5) do |
129 | not apply and the initial contact with the Department of Revenue |
130 | is made by the taxpayer pursuant to the amnesty program, the |
131 | taxpayer shall pay the full amount of the tax due and 50 percent |
132 | of the amount of interest due. |
133 | (7) Penalties may not be imposed on any tax paid pursuant |
134 | to the amnesty program, and the Department of Revenue may not |
135 | initiate a criminal investigation against or refer for |
136 | prosecution any taxpayer participating in the amnesty program |
137 | with respect to the failure to timely pay the tax disclosed in |
138 | the amnesty program. |
139 | (8) Participation in the amnesty program is conditioned |
140 | upon the taxpayer's express waiver of rights to contest taxes |
141 | being reported pursuant to the amnesty program. If the taxes |
142 | reported pursuant to the amnesty program are the subject of a |
143 | pending informal protest under s. 213.21, Florida Statutes, or |
144 | of administrative or judicial proceedings that have not become |
145 | final as of the date payment of the taxes is made pursuant to |
146 | the amnesty program, participation in the amnesty program is |
147 | conditioned upon the taxpayer's withdrawal of such informal |
148 | protest or dismissal of such administrative or judicial |
149 | proceeding. Participation in the amnesty program is also |
150 | conditioned upon the taxpayer's express agreement to waive any |
151 | right to claim a refund or to protest or initiate an |
152 | administrative or judicial proceeding to review any denial of a |
153 | refund claim for any refund of tax or interest paid under the |
154 | amnesty program except as provided in this subsection. A refund |
155 | of any penalty or interest paid prior to July 1, 2010, may not |
156 | be made. Any credit or refund of tax or interest paid as a |
157 | result of participation in the amnesty program is strictly |
158 | limited to amounts determined by the Department of Revenue to |
159 | have been paid in error. |
160 | (9) A taxpayer under criminal investigation, indictment, |
161 | information, or prosecution regarding a revenue law of this |
162 | state is not eligible to participate in the amnesty program. A |
163 | taxpayer under pretrial intervention or a diversion program, |
164 | probation, or community control or in a work camp, jail, state |
165 | prison, or another correctional system regarding a revenue law |
166 | of this state is not eligible to participate in the amnesty |
167 | program. |
168 | (10) With or without an audit, the Department of Revenue |
169 | may issue a notice or demand for payment with respect to any tax |
170 | or interest that the department determines to be due with any |
171 | return filed under the tax amnesty program, and such notice and |
172 | demand is prima facie correct in any administrative, judicial, |
173 | or quasi-judicial proceeding. |
174 | (11) The Department of Revenue may, on the basis of fraud, |
175 | misrepresentation, or mutual mistake of fact, rescind a grant of |
176 | amnesty, including any amnesty granted as a result of |
177 | participation in the certified audit program during the period |
178 | the amnesty program is in effect. Any taxpayer that files under |
179 | the amnesty program false or fraudulent returns, forms, or |
180 | documentation or attempts in any manner to defeat or evade a tax |
181 | is subject to applicable penalties and criminal prosecution. |
182 | (12) Any local option tax administered by a local |
183 | government that imposed the tax pursuant to a statute permitting |
184 | self-administration is excluded from the amnesty program unless |
185 | the local government notifies the Department of Revenue by June |
186 | 1, 2010, that it chooses to participate in the amnesty program. |
187 | (13) The executive director of the Department of Revenue |
188 | may adopt emergency rules under ss. 120.536(1) and 120.54(4), |
189 | Florida Statutes, to implement the amnesty program. Such rules |
190 | may provide forms, procedures, terms, conditions, and methods of |
191 | payment appropriate for fair and effective administration of the |
192 | amnesty program and to ensure taxpayers' ongoing commitment to |
193 | proper remittance of taxes to the state. Notwithstanding any |
194 | other law, the emergency rules shall remain in effect until 6 |
195 | months after the date of adoption of the rule or the date of |
196 | final resolution of all amnesty applications filed pursuant to |
197 | this section, whichever is later. |
198 | Section 2. The sum of $1,234,000 in nonrecurring funds is |
199 | appropriated from the General Revenue Fund to the Department of |
200 | Revenue for the purpose of administering the amnesty program |
201 | created by this act. Funds remaining unexpended or unencumbered |
202 | from this appropriation as of June 30, 2010, shall revert and be |
203 | reappropriated for the same purpose in fiscal year 2010-2011. |
204 | Section 3. Effective July 1, 2010, paragraph (d) of |
205 | subsection (8) of section 213.053, Florida Statutes, is amended, |
206 | and subsections (20) and (21) are added to that section, to |
207 | read: |
208 | 213.053 Confidentiality and information sharing.- |
209 | (8) Notwithstanding any other provision of this section, |
210 | the department may provide: |
211 | (d) Names, addresses, and sales tax registration |
212 | information, and information relating to a public lodging |
213 | establishment or a public food service establishment having an |
214 | outstanding tax warrant, notice of lien, or judgment lien |
215 | certificate to the Division of Hotels and Restaurants of the |
216 | Department of Business and Professional Regulation in the |
217 | conduct of its official duties. |
218 |
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219 | Disclosure of information under this subsection shall be |
220 | pursuant to a written agreement between the executive director |
221 | and the agency. Such agencies, governmental or nongovernmental, |
222 | shall be bound by the same requirements of confidentiality as |
223 | the Department of Revenue. Breach of confidentiality is a |
224 | misdemeanor of the first degree, punishable as provided by s. |
225 | 775.082 or s. 775.083. |
226 | (20)(a) The department may publish a list of taxpayers |
227 | against whom the department has filed a warrant, notice of lien, |
228 | or judgment lien certificate. The list may include the name and |
229 | address of each taxpayer; the amounts and types of delinquent |
230 | taxes, fees, or surcharges, penalties, or interest; and the |
231 | employer identification number or other taxpayer identification |
232 | number. |
233 | (b) The department shall update the list at least monthly |
234 | to reflect payments for resolution of deficiencies and to |
235 | otherwise add or remove taxpayers from the list. |
236 | (c) The department may adopt rules to administer this |
237 | subsection. |
238 | (21) The department may disclose information relating to |
239 | taxpayers against whom the department has filed a warrant, |
240 | notice of lien, or judgment lien certificate. Such information |
241 | includes the name and address of the taxpayer, the actions |
242 | taken, the amounts and types of liabilities, and the amount of |
243 | any collections made. |
244 | Section 4. Effective July 1, 2010, section 213.50, Florida |
245 | Statutes, is amended to read: |
246 | 213.50 Failure to comply; revocation of corporate charter |
247 | or license to operate a public lodging establishment or public |
248 | food service establishment; refusal to reinstate charter or |
249 | license.- |
250 | (1) Any corporation of this state which has an outstanding |
251 | tax warrant that has existed for more than 3 consecutive months |
252 | is subject to the revocation of its charter as provided in s. |
253 | 607.1420. |
254 | (2) A request for reinstatement of a corporate charter may |
255 | not be granted by the Division of Corporations of the Department |
256 | of State if an outstanding tax warrant has existed for that |
257 | corporation for more than 3 consecutive months. |
258 | (3)(a) The Division of Hotels and Restaurants of the |
259 | Department of Business and Professional Regulation may revoke a |
260 | license to operate a public lodging establishment or a public |
261 | food service establishment if a tax warrant has been outstanding |
262 | against the licenseholder for more than 3 months. |
263 | (b) The division may deny an application to renew a |
264 | license to operate a public lodging establishment or a public |
265 | food service establishment if a tax warrant has been outstanding |
266 | against the licenseholder for more than 3 months. |
267 | Section 5. Effective July 1, 2010, section 213.692, |
268 | Florida Statutes, is created to read: |
269 | 213.692 Integrated enforcement authority.- |
270 | (1) If the department files a warrant, notice of lien, or |
271 | judgment lien certificate against the property of a taxpayer, |
272 | the department may also revoke all certificates of registration, |
273 | permits, or licenses issued by the department to that taxpayer. |
274 | (a) Before the department may revoke the certificates of |
275 | registration, permits, or licenses, the department must schedule |
276 | an informal conference that the taxpayer is required to attend. |
277 | At the conference, the taxpayer may present evidence regarding |
278 | the department's intended action or enter into a compliance |
279 | agreement. The department must provide written notice to the |
280 | taxpayer of the department's intended action and the time, date, |
281 | and place of the conference. The department shall issue an |
282 | administrative complaint to revoke the certificates of |
283 | registration, permits, or licenses if the taxpayer does not |
284 | attend the conference, enter into a compliance agreement, or |
285 | comply with the compliance agreement. |
286 | (b) The department may not issue a certificate of |
287 | registration, permit, or license to a taxpayer whose certificate |
288 | of registration, permit, or license has been revoked unless: |
289 | 1. The outstanding liabilities of the taxpayer have been |
290 | satisfied; or |
291 | 2. The department enters into a written agreement with the |
292 | taxpayer regarding any outstanding liabilities and, as part of |
293 | such agreement, agrees to issue a certificate of registration, |
294 | permit, or license. |
295 | (c) The department shall require a cash deposit, bond, or |
296 | other security as a condition of issuing a new certificate of |
297 | registration pursuant to the requirements of s. 212.14(4). |
298 | (2) If the department files a warrant or a judgment lien |
299 | certificate in connection with a jeopardy assessment, the |
300 | department must comply with the procedures in s. 213.732 before |
301 | or in conjunction with those provided in this section. |
302 | (3) The department may adopt rules to administer this |
303 | section. |
304 | Section 6. Effective July 1, 2010, the Department of |
305 | Revenue is authorized to adopt emergency rules pursuant to ss. |
306 | 120.536(1) and 120.54, Florida Statutes, to administer s. |
307 | 213.692, Florida Statutes. The emergency rules shall remain in |
308 | effect for 6 months after adoption and may be renewed during the |
309 | pendency of procedures to adopt rules addressing the subject of |
310 | the emergency rules. |
311 | Section 7. Section 213.758, Florida Statutes, is created |
312 | to read: |
313 | 213.758 Transfer of tax liabilities.- |
314 | (1) As used in this section, the term: |
315 | (a) "Involuntary transfer" means a transfer of a business |
316 | or stock of goods made without the consent of the transferor, |
317 | including, but not limited to, a transfer: |
318 | 1. That occurs due to the foreclosure of a security |
319 | interest issued to a person who is not an insider as defined in |
320 | s. 726.102; |
321 | 2. That results from an eminent domain or condemnation |
322 | action; |
323 | 3. Pursuant to chapter 61, chapter 702, or the United |
324 | States Bankruptcy Code; |
325 | 4. To a financial institution, as defined in s. 655.005, |
326 | if the transfer is made to satisfy the transferor's debt to the |
327 | financial institution; or |
328 | 5. To a third party to the extent that the proceeds are |
329 | used to satisfy the transferor's indebtedness to a financial |
330 | institution as defined in s. 655.005. If the third party |
331 | receives assets worth more than the indebtedness, the transfer |
332 | of the excess may not be deemed an involuntary transfer. |
333 | (b) "Transfer" means every mode, direct or indirect, with |
334 | or without consideration, of disposing of or parting with a |
335 | business or stock of goods, and includes, but is not limited to, |
336 | assigning, conveying, demising, gifting, granting, or selling. |
337 | (2) A taxpayer who is liable for any tax, interest, |
338 | penalty, surcharge, or fee administered by the department |
339 | pursuant to chapter 443 or described in s. 72.011(1), excluding |
340 | corporate income tax, and who quits a business without the |
341 | benefit of a purchaser, successor, or assignee, or without |
342 | transferring the business or stock of goods to a transferee, |
343 | must file a final return and make full payment within 15 days |
344 | after quitting the business. A taxpayer who fails to file a |
345 | final return and make payment may not engage in any business in |
346 | this state until the final return has been filed and all taxes, |
347 | interest, or penalties due have been paid. The Department of |
348 | Legal Affairs may seek an injunction at the request of the |
349 | department to prevent further business activity until such tax, |
350 | interest, or penalties are paid. A temporary injunction |
351 | enjoining further business activity may be granted by a court |
352 | without notice. |
353 | (3) A taxpayer who is liable for taxes, interest, or |
354 | penalties levied under chapter 443 or any of the chapters |
355 | specified in s. 213.05, excluding corporate income tax, who |
356 | transfers the taxpayer's business or stock of goods, must file a |
357 | final return and make full payment within 15 days after the date |
358 | of transfer. |
359 | (4)(a) A transferee, or a group of transferees acting in |
360 | concert, of more than 50 percent of a business or stock of goods |
361 | is liable for any tax, interest, or penalties owed by the |
362 | transferor unless: |
363 | 1. The transferor provides a receipt or certificate from |
364 | the department to the transferee showing that the transferor is |
365 | not liable for taxes, interest, or penalties from the operation |
366 | of the business; and |
367 | 2. The department finds that the transferor is not liable |
368 | for taxes, interest, or penalties after an audit of the |
369 | transferor's books and records. The audit may be requested by |
370 | the transferee or the transferor. The department may charge a |
371 | fee for the cost of the audit if it has not issued a notice of |
372 | intent to audit by the time the request for the audit is |
373 | received. |
374 | (b) A transferee may withhold a portion of the |
375 | consideration for a business or stock of goods to pay the taxes, |
376 | interest, or penalties owed to the state from the operation of |
377 | the business. The transferee shall pay the withheld |
378 | consideration to the state within 30 days after the date of the |
379 | transfer. If the consideration withheld is less than the |
380 | transferor's liability, the transferor remains liable for the |
381 | deficiency. |
382 | (c) A transferee who acquires the business or stock of |
383 | goods and fails to pay the taxes, interest, or penalties due may |
384 | not engage in any business in the state until the taxes, |
385 | interest, or penalties are paid. The Department of Legal Affairs |
386 | may seek an injunction at the request of the department to |
387 | prevent further business activity until such tax, interest, or |
388 | penalties are paid. A temporary injunction enjoining further |
389 | business activity may be granted by a court without notice. |
390 | (5) The transferee, or transferees acting in concert, of |
391 | more than 50 percent of a business or stock of goods are jointly |
392 | and severally liable with the transferor for the payment of the |
393 | taxes, interest, or penalties owed to the state from the |
394 | operation of the business by the transferor. |
395 | (6) The maximum liability of a transferee pursuant to this |
396 | section is equal to the fair market value of the property |
397 | transferred or the total purchase price, whichever is greater. |
398 | (7) After notice by the department of transferee liability |
399 | under this section, the transferee has 60 days within which to |
400 | file an action as provided in chapter 72. |
401 | (8) This section does not impose liability on a transferee |
402 | of a business or stock of goods pursuant to an involuntary |
403 | transfer. |
404 | (9) The department may adopt rules necessary to administer |
405 | and enforce this section. |
406 | Section 8. For fiscal year 2010-2011, 25 full-time |
407 | equivalent positions, with associated salary rate of $817,448, |
408 | are authorized. Also for fiscal year 2010-2011, the sums of |
409 | $1,445,100 in recurring funds and $96,925 in nonrecurring funds |
410 | from the General Revenue Fund are appropriated to the Department |
411 | of Revenue for the purpose of conducting audits and tax |
412 | collection services in the department. |
413 | Section 9. Except as otherwise expressly provided in this |
414 | act, this act shall take effect upon becoming a law. |