Florida Senate - 2022                                    SB 1558
       
       
        
       By Senator Gruters
       
       
       
       
       
       23-01606-22                                           20221558__
    1                        A bill to be entitled                      
    2         An act relating to tax on the rental or lease of real
    3         property; repealing s. 212.031, F.S., relating to the
    4         tax on the rental or license fee for use of real
    5         property; repealing s. 212.099, F.S., relating to tax
    6         credits for contributions to eligible nonprofit
    7         scholarship-funding organizations; amending ss.
    8         212.0598, 212.0602, 212.08, 288.1258, 338.234,
    9         341.840, and 1002.395, F.S.; conforming provisions to
   10         changes made by the act; reenacting ss.
   11         1002.394(11)(a) and 1002.40(11)(g), F.S., relating to
   12         the Family Empowerment Scholarship Program and the
   13         Hope Scholarship Program, respectively, to incorporate
   14         the amendment made to s. 1002.395, F.S., in references
   15         thereto; providing an effective date.
   16          
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 212.031, Florida Statutes, is repealed.
   20         Section 2. Subsection (2) of section 212.0598, Florida
   21  Statutes, is amended to read:
   22         212.0598 Special provisions; air carriers.—
   23         (2) The basis of the tax shall be the ratio of Florida
   24  mileage to total mileage as determined pursuant to chapter 220
   25  and this section. The ratio shall be determined at the close of
   26  the carrier’s preceding fiscal year. However, during the fiscal
   27  year in which the air carrier begins initial operations in this
   28  state, the carrier may determine its mileage apportionment
   29  factor based on an estimated ratio of anticipated revenue miles
   30  in this state to anticipated total revenue miles. In such cases,
   31  the air carrier shall pay additional tax or apply for a refund
   32  based on the actual ratio for that year. The applicable ratio
   33  shall be applied each month to the carrier’s total systemwide
   34  gross purchases of tangible personal property and services
   35  otherwise taxable in Florida. Additionally, the ratio shall be
   36  applied each month to the carrier’s total systemwide payments
   37  for the lease or rental of, or license in, real property used by
   38  the carrier substantially for aircraft maintenance if that
   39  carrier employed, on average, during the previous calendar
   40  quarter in excess of 3,000 full-time equivalent maintenance or
   41  repair employees at one maintenance base that it leases, rents,
   42  or has a license in, in this state. In all other instances, the
   43  tax on real property leased, rented, or licensed by the carrier
   44  shall be as provided in s. 212.031.
   45         Section 3. Section 212.0602, Florida Statutes, is amended
   46  to read:
   47         212.0602 Education; limited exemption.—To facilitate
   48  investment in education and job training, there is also exempt
   49  from the taxes levied under this chapter, subject to the
   50  provisions of this section, the purchase or lease of materials,
   51  equipment, and other items or the license in or lease of real
   52  property by any entity, institution, or organization that is
   53  primarily engaged in teaching students to perform any of the
   54  activities or services described in s. 212.031(1)(a)9., that
   55  conducts classes at a fixed location located in this state, that
   56  is licensed under chapter 1005, and that has at least 500
   57  enrolled students. Any entity, institution, or organization
   58  meeting the requirements of this section shall be deemed to
   59  qualify for the exemptions in s. 212.08(5)(f) and (12) ss.
   60  212.031(1)(a)9. and 212.08(5)(f) and (12), and to qualify for an
   61  exemption for its purchase or lease of materials, equipment, and
   62  other items used for education or demonstration of the school’s
   63  curriculum, including supporting operations. Nothing in this
   64  section shall preclude an entity described in this section from
   65  qualifying for any other exemption provided for in this chapter.
   66         Section 4. Paragraph (s) of subsection (5) of section
   67  212.08, Florida Statutes, is amended to read:
   68         212.08 Sales, rental, use, consumption, distribution, and
   69  storage tax; specified exemptions.—The sale at retail, the
   70  rental, the use, the consumption, the distribution, and the
   71  storage to be used or consumed in this state of the following
   72  are hereby specifically exempt from the tax imposed by this
   73  chapter.
   74         (5)EXEMPTIONS; ACCOUNT OF USE.—
   75         (s) Data center property.—
   76         1. As used in this paragraph, the term:
   77         a. “Critical IT load” means that portion of electric power
   78  capacity, expressed in terms of megawatts, which is reserved
   79  solely for owners or tenants of a data center to operate their
   80  computer server equipment. The term does not include any
   81  ancillary load for cooling, lighting, common areas, or other
   82  equipment.
   83         b. “Cumulative capital investment” means the combined total
   84  of all expenses incurred by the owners or tenants of a data
   85  center after July 1, 2017, in connection with acquiring,
   86  constructing, installing, equipping, or expanding the data
   87  center. However, the term does not include any expenses incurred
   88  in the acquisition of improved real property operating as a data
   89  center at the time of acquisition or within 6 months before the
   90  acquisition.
   91         c. “Data center” means a facility that:
   92         (I) Consists of one or more contiguous parcels in this
   93  state, along with the buildings, substations and other
   94  infrastructure, fixtures, and personal property located on the
   95  parcels;
   96         (II) Is used exclusively to house and operate equipment
   97  that receives, stores, aggregates, manages, processes,
   98  transforms, retrieves, researches, or transmits data; or that is
   99  necessary for the proper operation of equipment that receives,
  100  stores, aggregates, manages, processes, transforms, retrieves,
  101  researches, or transmits data;
  102         (III) Has a critical IT load of 15 megawatts or higher, and
  103  a critical IT load of 1 megawatt or higher dedicated to each
  104  individual owner or tenant within the data center; and
  105         (IV) Is constructed on or after July 1, 2017.
  106         d. “Data center property” means property used exclusively
  107  at a data center to construct, outfit, operate, support, power,
  108  cool, dehumidify, secure, or protect a data center and any
  109  contiguous dedicated substations. The term includes, but is not
  110  limited to, construction materials, component parts, machinery,
  111  equipment, computers, servers, installations, redundancies, and
  112  operating or enabling software, including any replacements,
  113  updates and new versions, and upgrades to or for such property,
  114  regardless of whether the property is a fixture or is otherwise
  115  affixed to or incorporated into real property. The term also
  116  includes electricity used exclusively at a data center.
  117         2. Data center property is exempt from the tax imposed by
  118  this chapter, except for the tax imposed by s. 212.031. To be
  119  eligible for the exemption provided by this paragraph, the data
  120  center’s owners and tenants must make a cumulative capital
  121  investment of $150 million or more for the data center and the
  122  data center must have a critical IT load of 15 megawatts or
  123  higher and a critical IT load of 1 megawatt or higher dedicated
  124  to each individual owner or tenant within the data center. Each
  125  of these requirements must be satisfied no later than 5 years
  126  after the commencement of construction of the data center.
  127         3.a. To receive the exemption provided by this paragraph,
  128  the person seeking the exemption must apply to the department
  129  for a temporary tax exemption certificate. The application must
  130  state that a qualifying data center designation is being sought
  131  and provide information that the requirements of subparagraph 2.
  132  will be met. Upon a tentative determination by the department
  133  that the data center will meet the requirements of subparagraph
  134  2., the department must issue the certificate.
  135         b.(I) The certificateholder shall maintain all necessary
  136  books and records to support the exemption provided by this
  137  paragraph. Upon satisfaction of all requirements of subparagraph
  138  2., the certificateholder must deliver the temporary tax
  139  certificate to the department together with documentation
  140  sufficient to show the satisfaction of the requirements. Such
  141  documentation must include written declarations, pursuant to s.
  142  92.525, from:
  143         (A) A professional engineer, licensed pursuant to chapter
  144  471, certifying that the critical IT load requirement set forth
  145  in subparagraph 2. has been satisfied at the data center; and
  146         (B) A Florida certified public accountant, as defined in s.
  147  473.302, certifying that the cumulative capital investment
  148  requirement set forth in subparagraph 2. has been satisfied for
  149  the data center.
  150  
  151  The professional engineer and the Florida certified public
  152  accountant may not be professionally related with the data
  153  center’s owners, tenants, or contractors, except that they may
  154  be retained by a data center owner to certify that the
  155  requirements of subparagraph 2. have been met.
  156         (II) If the department determines that the subparagraph 2.
  157  requirements have been satisfied, the department must issue a
  158  permanent tax exemption certificate.
  159         (III) Notwithstanding s. 212.084(4), the permanent tax
  160  exemption certificate remains valid and effective for as long as
  161  the data center described in the exemption application continues
  162  to operate as a data center as defined in subparagraph 1., with
  163  review by the department every 5 years to ensure compliance. As
  164  part of the review, the certificateholder shall, within 3 months
  165  before the end of any 5-year period, submit a written
  166  declaration, pursuant to s. 92.525, certifying that the critical
  167  IT load of 15 megawatts or higher and the critical IT load of 1
  168  megawatt or higher dedicated to each individual owner or tenant
  169  within the data center required by subparagraph 2. continues to
  170  be met. All owners, tenants, contractors, and others purchasing
  171  exempt data center property shall maintain all necessary books
  172  and records to support the exemption as to those purchases.
  173         (IV) Notwithstanding s. 213.053, the department may share
  174  information concerning a temporary or permanent data center
  175  exemption certificate among all owners, tenants, contractors,
  176  and others purchasing exempt data center property pursuant to
  177  such certificate.
  178         c. If, in an audit conducted by the department, it is
  179  determined that the certificateholder or any owners, tenants,
  180  contractors, or others purchasing, renting, or leasing data
  181  center property do not meet the criteria of this paragraph, the
  182  amount of taxes exempted at the time of purchase, rental, or
  183  lease is immediately due and payable to the department from the
  184  purchaser, renter, or lessee of those particular items, together
  185  with the appropriate interest and penalty computed from the date
  186  of purchase in the manner prescribed by this chapter.
  187  Notwithstanding s. 95.091(3)(a), any tax due as provided in this
  188  sub-subparagraph may be assessed by the department within 6
  189  years after the date the data center property was purchased.
  190         d. Purchasers, lessees, and renters of data center property
  191  who qualify for the exemption provided by this paragraph shall
  192  obtain from the data center a copy of the tax exemption
  193  certificate issued pursuant to sub-subparagraph a. or sub
  194  subparagraph b. Before or at the time of purchase of the item or
  195  items eligible for exemption, the purchaser, lessee, or renter
  196  shall provide to the seller a copy of the tax exemption
  197  certificate and a signed certificate of entitlement. Purchasers,
  198  lessees, and renters with self-accrual authority shall maintain
  199  all documentation necessary to prove the exempt status of
  200  purchases.
  201         e. For any purchase, lease, or rental of property that is
  202  exempt pursuant to this paragraph, the possession of a copy of a
  203  tax exemption certificate issued pursuant to sub-subparagraph a.
  204  or sub-subparagraph b. and a signed certificate of entitlement
  205  relieves the seller of the responsibility of collecting the tax
  206  on the sale, lease, or rental of such property, and the
  207  department must look solely to the purchaser, renter, or lessee
  208  for recovery of the tax if it determines that the purchase,
  209  rental, or lease was not entitled to the exemption.
  210         4. After June 30, 2027, the department may not issue a
  211  temporary tax exemption certificate pursuant to this paragraph.
  212         Section 5. Section 212.099, Florida Statutes, is repealed.
  213         Section 6. Paragraphs (b) and (c) of subsection (2) and
  214  subsection (3) of section 288.1258, Florida Statutes, are
  215  amended to read:
  216         288.1258 Entertainment industry qualified production
  217  companies; application procedure; categories; duties of the
  218  Department of Revenue; records and reports.—
  219         (2) APPLICATION PROCEDURE.—
  220         (b)1. The Office of Film and Entertainment shall establish
  221  a process by which an entertainment industry production company
  222  may be approved by the office as a qualified production company
  223  and may receive a certificate of exemption from the Department
  224  of Revenue for the sales and use tax exemptions under ss. 212.06
  225  and 212.08 ss. 212.031, 212.06, and 212.08.
  226         2. Upon determination by the Office of Film and
  227  Entertainment that a production company meets the established
  228  approval criteria and qualifies for exemption, the Office of
  229  Film and Entertainment shall return the approved application or
  230  application renewal or extension to the Department of Revenue,
  231  which shall issue a certificate of exemption.
  232         3. The Office of Film and Entertainment shall deny an
  233  application or application for renewal or extension from a
  234  production company if it determines that the production company
  235  does not meet the established approval criteria.
  236         (c) The Office of Film and Entertainment shall develop,
  237  with the cooperation of the Department of Revenue and local
  238  government entertainment industry promotion agencies, a
  239  standardized application form for use in approving qualified
  240  production companies.
  241         1. The application form shall include, but not be limited
  242  to, production-related information on employment, proposed
  243  budgets, planned purchases of items exempted from sales and use
  244  taxes under ss. 212.06 and 212.08 ss. 212.031, 212.06, and
  245  212.08, a signed affirmation from the applicant that any items
  246  purchased for which the applicant is seeking a tax exemption are
  247  intended for use exclusively as an integral part of
  248  entertainment industry preproduction, production, or
  249  postproduction activities engaged in primarily in this state,
  250  and a signed affirmation from the Office of Film and
  251  Entertainment that the information on the application form has
  252  been verified and is correct. In lieu of information on
  253  projected employment, proposed budgets, or planned purchases of
  254  exempted items, a production company seeking a 1-year
  255  certificate of exemption may submit summary historical data on
  256  employment, production budgets, and purchases of exempted items
  257  related to production activities in this state. Any information
  258  gathered from production companies for the purposes of this
  259  section shall be considered confidential taxpayer information
  260  and shall be disclosed only as provided in s. 213.053.
  261         2. The application form may be distributed to applicants by
  262  the Office of Film and Entertainment or local film commissions.
  263         (3) CATEGORIES.—
  264         (a)1. A production company may be qualified for designation
  265  as a qualified production company for a period of 1 year if the
  266  company has operated a business in Florida at a permanent
  267  address for a period of 12 consecutive months. Such a qualified
  268  production company shall receive a single 1-year certificate of
  269  exemption from the Department of Revenue for the sales and use
  270  tax exemptions under ss. 212.06 and 212.08 ss. 212.031, 212.06,
  271  and 212.08, which certificate shall expire 1 year after issuance
  272  or upon the cessation of business operations in the state, at
  273  which time the certificate shall be surrendered to the
  274  Department of Revenue.
  275         2. The Office of Film and Entertainment shall develop a
  276  method by which a qualified production company may annually
  277  renew a 1-year certificate of exemption for a period of up to 5
  278  years without requiring the production company to resubmit a new
  279  application during that 5-year period.
  280         3. Any qualified production company may submit a new
  281  application for a 1-year certificate of exemption upon the
  282  expiration of that company’s certificate of exemption.
  283         (b)1. A production company may be qualified for designation
  284  as a qualified production company for a period of 90 days. Such
  285  production company shall receive a single 90-day certificate of
  286  exemption from the Department of Revenue for the sales and use
  287  tax exemptions under ss. 212.06 and 212.08 ss. 212.031, 212.06,
  288  and 212.08, which certificate shall expire 90 days after
  289  issuance, with extensions contingent upon approval of the Office
  290  of Film and Entertainment. The certificate shall be surrendered
  291  to the Department of Revenue upon its expiration.
  292         2. Any production company may submit a new application for
  293  a 90-day certificate of exemption upon the expiration of that
  294  company’s certificate of exemption.
  295         Section 7. Section 338.234, Florida Statutes, is amended to
  296  read:
  297         338.234 Granting concessions or selling along the turnpike
  298  system; immunity from taxation.—
  299         (1) The department may enter into contracts or licenses
  300  with any person for the sale of services or products or business
  301  opportunities on the turnpike system, or the turnpike enterprise
  302  may sell services, products, or business opportunities on the
  303  turnpike system, which benefit the traveling public or provide
  304  additional revenue to the turnpike system. Services, business
  305  opportunities, and products authorized to be sold include, but
  306  are not limited to, motor fuel, vehicle towing, and vehicle
  307  maintenance services; food with attendant nonalcoholic
  308  beverages; lodging, meeting rooms, and other business services
  309  opportunities; advertising and other promotional opportunities,
  310  which advertising and promotions must be consistent with the
  311  dignity and integrity of the state; state lottery tickets sold
  312  by authorized retailers; games and amusements that operate by
  313  the application of skill, not including games of chance as
  314  defined in s. 849.16 or other illegal gambling games; Florida
  315  citrus, goods promoting the state, or handmade goods produced
  316  within the state; and travel information, tickets, reservations,
  317  or other related services. However, the department, pursuant to
  318  the grants of authority to the turnpike enterprise under this
  319  section, shall not exercise the power of eminent domain solely
  320  for the purpose of acquiring real property in order to provide
  321  business services or opportunities, such as lodging and meeting
  322  room space on the turnpike system.
  323         (2) The effectuation of the authorized purposes of the
  324  Strategic Intermodal System, created under ss. 339.61-339.65,
  325  and Florida Turnpike Enterprise, created under this chapter, is
  326  for the benefit of the people of the state, for the increase of
  327  their commerce and prosperity, and for the improvement of their
  328  health and living conditions; and, because the system and
  329  enterprise perform essential government functions in
  330  effectuating such purposes, neither the turnpike enterprise nor
  331  any nongovernment lessee or licensee renting, leasing, or
  332  licensing real property from the turnpike enterprise, pursuant
  333  to an agreement authorized by this section, are required to pay
  334  any commercial rental tax imposed under s. 212.031 on any
  335  capital improvements constructed, improved, acquired, installed,
  336  or used for such purposes.
  337         Section 8. Paragraph (a) of subsection (3) of section
  338  341.840, Florida Statutes, is amended to read:
  339         341.840 Tax exemption.—
  340         (3)(a) Purchases or leases of tangible personal property or
  341  real property by the enterprise, excluding agents of the
  342  enterprise, are exempt from taxes imposed by chapter 212 as
  343  provided in s. 212.08(6). Purchases or leases of tangible
  344  personal property that is incorporated into the high-speed rail
  345  system as a component part thereof, as determined by the
  346  enterprise, by agents of the enterprise or the owner of the
  347  high-speed rail system are exempt from sales or use taxes
  348  imposed by chapter 212. Leases, rentals, or licenses to use real
  349  property granted to agents of the enterprise or the owner of the
  350  high-speed rail system are exempt from taxes imposed by s.
  351  212.031 if the real property becomes part of such system. The
  352  exemptions granted in this subsection do not apply to sales,
  353  leases, or licenses by the enterprise, agents of the enterprise,
  354  or the owner of the high-speed rail system.
  355         Section 9. Paragraph (j) of subsection (6) of section
  356  1002.395, Florida Statutes, is amended to read:
  357         1002.395 Florida Tax Credit Scholarship Program.—
  358         (6) OBLIGATIONS OF ELIGIBLE NONPROFIT SCHOLARSHIP-FUNDING
  359  ORGANIZATIONS.—An eligible nonprofit scholarship-funding
  360  organization:
  361         (j)1. May use eligible contributions received pursuant to
  362  this section and ss. 212.1832 and 1002.40 ss. 212.099, 212.1832,
  363  and 1002.40 during the state fiscal year in which such
  364  contributions are collected for administrative expenses if the
  365  organization has operated as an eligible nonprofit scholarship
  366  funding organization for at least the preceding 3 fiscal years
  367  and did not have any findings of material weakness or material
  368  noncompliance in its most recent audit under paragraph (m).
  369  Administrative expenses from eligible contributions may not
  370  exceed 3 percent of the total amount of all scholarships funded
  371  by an eligible scholarship-funding organization under this
  372  chapter. Such administrative expenses must be reasonable and
  373  necessary for the organization’s management and distribution of
  374  scholarships funded under this chapter. No funds authorized
  375  under this subparagraph shall be used for lobbying or political
  376  activity or expenses related to lobbying or political activity.
  377  Up to one-third of the funds authorized for administrative
  378  expenses under this subparagraph may be used for expenses
  379  related to the recruitment of contributions from taxpayers. An
  380  eligible nonprofit scholarship-funding organization may not
  381  charge an application fee.
  382         2. Must expend for annual or partial-year scholarships an
  383  amount equal to or greater than 75 percent of the net eligible
  384  contributions remaining after administrative expenses during the
  385  state fiscal year in which such contributions are collected. No
  386  more than 25 percent of such net eligible contributions may be
  387  carried forward to the following state fiscal year. All amounts
  388  carried forward, for audit purposes, must be specifically
  389  identified for particular students, by student name and the name
  390  of the school to which the student is admitted, subject to the
  391  requirements of ss. 1002.22 and 1002.221 and 20 U.S.C. s. 1232g,
  392  and the applicable rules and regulations issued pursuant
  393  thereto. Any amounts carried forward shall be expended for
  394  annual or partial-year scholarships in the following state
  395  fiscal year. No later than September 30 of each year, net
  396  eligible contributions remaining on June 30 of each year that
  397  are in excess of the 25 percent that may be carried forward
  398  shall be used to provide scholarships to eligible students or
  399  transferred to other eligible nonprofit scholarship-funding
  400  organizations to provide scholarships for eligible students. All
  401  transferred funds must be deposited by each eligible nonprofit
  402  scholarship-funding organization receiving such funds into its
  403  scholarship account. All transferred amounts received by any
  404  eligible nonprofit scholarship-funding organization must be
  405  separately disclosed in the annual financial audit required
  406  under paragraph (m).
  407         3. Must, before granting a scholarship for an academic
  408  year, document each scholarship student’s eligibility for that
  409  academic year. A scholarship-funding organization may not grant
  410  multiyear scholarships in one approval process.
  411  
  412  Information and documentation provided to the Department of
  413  Education and the Auditor General relating to the identity of a
  414  taxpayer that provides an eligible contribution under this
  415  section shall remain confidential at all times in accordance
  416  with s. 213.053.
  417         Section 10. For the purpose of incorporating the amendment
  418  made by this act to section 1002.395, Florida Statutes, in a
  419  reference thereto, paragraph (a) of subsection (11) of section
  420  1002.394, Florida Statutes, is reenacted to read:
  421         1002.394 The Family Empowerment Scholarship Program.—
  422         (11) OBLIGATIONS OF ELIGIBLE SCHOLARSHIP-FUNDING
  423  ORGANIZATIONS.—
  424         (a) An eligible nonprofit scholarship-funding organization
  425  awarding scholarships to eligible students pursuant to paragraph
  426  (3)(a):
  427         1. Must receive applications, determine student
  428  eligibility, notify parents in accordance with the requirements
  429  of this section, and provide the department with information on
  430  the student to enable the department to determine student
  431  funding in accordance with paragraph (12)(a).
  432         2. Shall verify the household income level of students
  433  pursuant to subparagraph (3)(a)1. and submit the verified list
  434  of students and related documentation to the department.
  435         3. Shall award scholarships in priority order pursuant to
  436  paragraph (3)(a).
  437         4. May, from eligible contributions received pursuant to s.
  438  1002.395(6)(j)1., use an amount not to exceed 2.5 percent of the
  439  total amount of all scholarships funded under this section for
  440  administrative expenses associated with performing functions
  441  under this section. Such administrative expense amount is
  442  considered within the 3 percent limit on the total amount an
  443  organization may use to administer scholarships under this
  444  chapter.
  445         5. Must, in a timely manner, submit any information
  446  requested by the department relating to the scholarship under
  447  this section.
  448         6. Must notify the department about any violation of this
  449  section by a parent or a private school.
  450         Section 11. For the purpose of incorporating the amendment
  451  made by this act to section 1002.395, Florida Statutes, in a
  452  reference thereto, paragraph (g) of subsection (11) of section
  453  1002.40, Florida Statutes, is reenacted to read:
  454         1002.40 The Hope Scholarship Program.—
  455         (11) FUNDING AND PAYMENT.—
  456         (g) An eligible nonprofit scholarship-funding organization,
  457  subject to the limitations of s. 1002.395(6)(j)1., may use
  458  eligible contributions received during the state fiscal year in
  459  which such contributions are collected for administrative
  460  expenses.
  461         Section 12. This act shall take effect July 1, 2026.