Florida Senate - 2022                                     SB 930
       
       
        
       By Senator Hooper
       
       
       
       
       
       16-01093-22                                            2022930__
    1                        A bill to be entitled                      
    2         An act relating to sales tax exemptions for public
    3         works; amending s. 212.08, F.S.; providing instances
    4         when sales of certain tangible personal property to
    5         contractors are not exempt from sales and use tax;
    6         prohibiting certain nonprofit entities that used a
    7         sales tax exemption illegally from transferring
    8         liability for the tax, penalty, or interest to another
    9         party; requiring the Department of Revenue to adopt
   10         rules for determining the propriety of exempt sales to
   11         eligible nonprofit entities; requiring the department
   12         to adopt rules prohibiting certain entities that
   13         receive a sales tax exemption from assigning
   14         responsibility related to tangible personal property
   15         to other entities; requiring the department to
   16         establish by rule a process to suspend a public
   17         entity’s ability to use a tax exemption if certain
   18         conditions are met; amending s. 212.15, F.S.;
   19         providing an exception for when certain taxes are
   20         considered state funds; providing an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Present paragraph (d) of subsection (6) of
   25  section 212.08, Florida Statutes, is redesignated as paragraph
   26  (e), a new paragraph (d) is added to that subsection, and
   27  paragraphs (b) and (c) of that subsection are amended, to read:
   28         212.08 Sales, rental, use, consumption, distribution, and
   29  storage tax; specified exemptions.—The sale at retail, the
   30  rental, the use, the consumption, the distribution, and the
   31  storage to be used or consumed in this state of the following
   32  are hereby specifically exempt from the tax imposed by this
   33  chapter.
   34         (6) EXEMPTIONS; POLITICAL SUBDIVISIONS; ELIGIBLE NONPROFIT
   35  ENTITIES.—
   36         (b) The exemption provided under this subsection does not
   37  include sales of tangible personal property made to contractors
   38  employed directly to or as agents of any such government or
   39  political subdivision if the contractor is responsible for
   40  purchasing, maintaining, or paying for the tangible personal
   41  property and the when such tangible personal property goes into
   42  or becomes a part of public works owned by such government or
   43  political subdivision. A determination of whether a particular
   44  transaction is properly characterized as an exempt sale to a
   45  government entity or a taxable sale to a contractor shall be
   46  based upon the substance of the transaction rather than the form
   47  in which the transaction is cast. However, for sales of tangible
   48  personal property that go into or become a part of public works
   49  owned by a governmental entity, other than the Federal
   50  Government, a governmental entity claiming the exemption
   51  provided under this subsection shall certify to the dealer and
   52  the contractor the entity’s claim to the exemption by providing
   53  the dealer and the contractor a certificate of entitlement to
   54  the exemption for such sales. If the department later determines
   55  that such sales, in which the governmental entity provided the
   56  dealer and the contractor with a certificate of entitlement to
   57  the exemption, were not exempt sales to the governmental entity,
   58  the governmental entity shall be liable for any tax, penalty,
   59  and interest determined to be owed on such transactions.
   60  Possession by a dealer or contractor of a certificate of
   61  entitlement to the exemption from the governmental entity
   62  relieves the dealer from the responsibility of collecting tax on
   63  the sale and the contractor for any liability for tax, penalty,
   64  or interest related to the sale, and the department shall look
   65  solely to the governmental entity for recovery of tax, penalty,
   66  and interest if the department determines that the transaction
   67  was not an exempt sale to the governmental entity. The
   68  governmental entity or other eligible nonprofit entity using a
   69  sales tax exemption for any construction-related activities
   70  covered in this chapter may not transfer liability for such tax,
   71  penalty, and interest to another party by contract or agreement.
   72         (c) The department shall adopt rules for determining
   73  whether a particular transaction is properly characterized as an
   74  exempt sale to a governmental entity or other eligible nonprofit
   75  entity or a taxable sale to a contractor which give special
   76  consideration to factors that govern the status of the tangible
   77  personal property before being affixed to real property. In
   78  developing such rules, assumption of the risk of damage or loss
   79  is of paramount consideration in the determination. The
   80  department shall clarify that a government, political
   81  subdivision, religious institution, veterans’ organization,
   82  school, college, university, or other eligible nonprofit entity
   83  claiming the exemption may not assign any responsibility through
   84  an agreement, oral or written, for the ordering, purchasing,
   85  payment, or maintenance of the tangible personal property,
   86  material, or supplies on behalf of that nonprofit entity. The
   87  department shall also adopt, by rule, a certificate of
   88  entitlement to exemption for use as provided in paragraph (b).
   89  The certificate shall require the governmental entity to affirm
   90  that it will comply with the requirements of this subsection and
   91  the rules adopted under paragraph (b) in order to qualify for
   92  the exemption and that it acknowledges its liability for any
   93  tax, penalty, or interest later determined by the department to
   94  be owed on such transactions.
   95         (d)The department shall establish by rule a process by
   96  which the department may suspend a public entity’s ability to
   97  use the tax exemption if the entity violates this section or
   98  rules adopted thereunder.
   99         Section 2. Subsection (1) of section 212.15, Florida
  100  Statutes, is amended to read:
  101         212.15 Taxes declared state funds; penalties for failure to
  102  remit taxes; due and delinquent dates; judicial review.—
  103         (1) The taxes imposed by this chapter shall be considered
  104  state funds at the moment of collection, except as provided in
  105  s. 212.06(5)(a)2.e., or unless an exemption is claimed under s.
  106  212.08(6), become state funds at the moment of collection and
  107  shall for each month be due to the department on the first day
  108  of the succeeding month and be delinquent on the 21st day of
  109  such month. All returns postmarked after the 20th day of such
  110  month are delinquent.
  111         Section 3. This act shall take effect July 1, 2022.