Florida Senate - 2017 SB 820 By Senator Hutson 7-01076-17 2017820__ 1 A bill to be entitled 2 An act relating to taxation of the rental of 3 commercial real property; amending s. 212.031, F.S.; 4 providing an exemption from the tax for property with 5 a total annual rental payment under a specified limit; 6 defining the terms “total annual rental payment” and 7 “affiliated group”; providing construction; providing 8 an exception to the exemption; providing 9 applicability; providing an effective date. 10 11 Be It Enacted by the Legislature of the State of Florida: 12 13 Section 1. Paragraph (a) of subsection (1) of section 14 212.031, Florida Statutes, is amended to read: 15 212.031 Tax on rental or license fee for use of real 16 property.— 17 (1)(a) It is declared to be the legislative intent that 18 every person is exercising a taxable privilege who engages in 19 the business of renting, leasing, letting, or granting a license 20 for the use of any real property unless such property is: 21 1. Assessed as agricultural property under s. 193.461. 22 2. Used exclusively as dwelling units. 23 3. Property subject to tax on parking, docking, or storage 24 spaces under s. 212.03(6). 25 4. Recreational property or the common elements of a 26 condominium when subject to a lease between the developer or 27 owner thereof and the condominium association in its own right 28 or as agent for the owners of individual condominium units or 29 the owners of individual condominium units. However, only the 30 lease payments on such property shall be exempt from the tax 31 imposed by this chapter, and any other use made by the owner or 32 the condominium association shall be fully taxable under this 33 chapter. 34 5. A public or private street or right-of-way and poles, 35 conduits, fixtures, and similar improvements located on such 36 streets or rights-of-way, occupied or used by a utility or 37 provider of communications services, as defined by s. 202.11, 38 for utility or communications or television purposes. For 39 purposes of this subparagraph, the term “utility” means any 40 person providing utility services as defined in s. 203.012. This 41 exception also applies to property, wherever located, on which 42 the following are placed: towers, antennas, cables, accessory 43 structures, or equipment, not including switching equipment, 44 used in the provision of mobile communications services as 45 defined in s. 202.11. For purposes of this chapter, towers used 46 in the provision of mobile communications services, as defined 47 in s. 202.11, are considered to be fixtures. 48 6. A public street or road which is used for transportation 49 purposes. 50 7. Property used at an airport exclusively for the purpose 51 of aircraft landing or aircraft taxiing or property used by an 52 airline for the purpose of loading or unloading passengers or 53 property onto or from aircraft or for fueling aircraft. 54 8.a. Property used at a port authority, as defined in s. 55 315.02(2), exclusively for the purpose of oceangoing vessels or 56 tugs docking, or such vessels mooring on property used by a port 57 authority for the purpose of loading or unloading passengers or 58 cargo onto or from such a vessel, or property used at a port 59 authority for fueling such vessels, or to the extent that the 60 amount paid for the use of any property at the port is based on 61 the charge for the amount of tonnage actually imported or 62 exported through the port by a tenant. 63 b. The amount charged for the use of any property at the 64 port in excess of the amount charged for tonnage actually 65 imported or exported shall remain subject to tax except as 66 provided in sub-subparagraph a. 67 9. Property used as an integral part of the performance of 68 qualified production services. As used in this subparagraph, the 69 term “qualified production services” means any activity or 70 service performed directly in connection with the production of 71 a qualified motion picture, as defined in s. 212.06(1)(b), and 72 includes: 73 a. Photography, sound and recording, casting, location 74 managing and scouting, shooting, creation of special and optical 75 effects, animation, adaptation (language, media, electronic, or 76 otherwise), technological modifications, computer graphics, set 77 and stage support (such as electricians, lighting designers and 78 operators, greensmen, prop managers and assistants, and grips), 79 wardrobe (design, preparation, and management), hair and makeup 80 (design, production, and application), performing (such as 81 acting, dancing, and playing), designing and executing stunts, 82 coaching, consulting, writing, scoring, composing, 83 choreographing, script supervising, directing, producing, 84 transmitting dailies, dubbing, mixing, editing, cutting, 85 looping, printing, processing, duplicating, storing, and 86 distributing; 87 b. The design, planning, engineering, construction, 88 alteration, repair, and maintenance of real or personal property 89 including stages, sets, props, models, paintings, and facilities 90 principally required for the performance of those services 91 listed in sub-subparagraph a.; and 92 c. Property management services directly related to 93 property used in connection with the services described in sub 94 subparagraphs a. and b. 95 96 This exemption will inure to the taxpayer upon presentation of 97 the certificate of exemption issued to the taxpayer under the 98 provisions of s. 288.1258. 99 10. Leased, subleased, licensed, or rented to a person 100 providing food and drink concessionaire services within the 101 premises of a convention hall, exhibition hall, auditorium, 102 stadium, theater, arena, civic center, performing arts center, 103 publicly owned recreational facility, or any business operated 104 under a permit issued pursuant to chapter 550. A person 105 providing retail concessionaire services involving the sale of 106 food and drink or other tangible personal property within the 107 premises of an airport shall be subject to tax on the rental of 108 real property used for that purpose, but shall not be subject to 109 the tax on any license to use the property. For purposes of this 110 subparagraph, the term “sale” shall not include the leasing of 111 tangible personal property. 112 11. Property occupied pursuant to an instrument calling for 113 payments which the department has declared, in a Technical 114 Assistance Advisement issued on or before March 15, 1993, to be 115 nontaxable pursuant to rule 12A-1.070(19)(c), Florida 116 Administrative Code; provided that this subparagraph shall only 117 apply to property occupied by the same person before and after 118 the execution of the subject instrument and only to those 119 payments made pursuant to such instrument, exclusive of renewals 120 and extensions thereof occurring after March 15, 1993. 121 12. Property used or occupied predominantly for space 122 flight business purposes. As used in this subparagraph, “space 123 flight business” means the manufacturing, processing, or 124 assembly of a space facility, space propulsion system, space 125 vehicle, satellite, or station of any kind possessing the 126 capacity for space flight, as defined by s. 212.02(23), or 127 components thereof, and also means the following activities 128 supporting space flight: vehicle launch activities, flight 129 operations, ground control or ground support, and all 130 administrative activities directly related thereto. Property 131 shall be deemed to be used or occupied predominantly for space 132 flight business purposes if more than 50 percent of the 133 property, or improvements thereon, is used for one or more space 134 flight business purposes. Possession by a landlord, lessor, or 135 licensor of a signed written statement from the tenant, lessee, 136 or licensee claiming the exemption shall relieve the landlord, 137 lessor, or licensor from the responsibility of collecting the 138 tax, and the department shall look solely to the tenant, lessee, 139 or licensee for recovery of such tax if it determines that the 140 exemption was not applicable. 141 13. Rented, leased, subleased, or licensed to a person 142 providing telecommunications, data systems management, or 143 Internet services at a publicly or privately owned convention 144 hall, civic center, or meeting space at a public lodging 145 establishment as defined in s. 509.013. This subparagraph 146 applies only to that portion of the rental, lease, or license 147 payment that is based upon a percentage of sales, revenue 148 sharing, or royalty payments and not based upon a fixed price. 149 This subparagraph is intended to be clarifying and remedial in 150 nature and shall apply retroactively. This subparagraph does not 151 provide a basis for an assessment of any tax not paid, or create 152 a right to a refund of any tax paid, pursuant to this section 153 before July 1, 2010. 154 14. Property for which the total annual rental payment does 155 not exceed $50,000. 156 a. For purposes of this subparagraph, the term “total 157 annual rental payment” means the total of all rental fees 158 required during the term of the lease divided by the number of 159 days included in the term of the lease multiplied by 365. 160 b. The $50,000 threshold is determined by including all 161 leases between the lessor and lessee. For purposes of this 162 subparagraph, lessors and lessees include related entities that, 163 if corporations, would constitute an “affiliated group” of 164 corporations, as that term is defined in s. 1504(a) of the 165 Internal Revenue Code, 26 U.S.C. s. 1504(a). 166 c. A license to use real property does not qualify for the 167 exemption provided in this subparagraph. 168 Section 2. The amendment made by this act to s. 212.031, 169 Florida Statutes, applies to rental payments due under a lease 170 on or after January 1, 2018. 171 Section 3. This act shall take effect January 1, 2018.