2016 Florida Statutes
Departmental powers; hearings; distress warrants; bonds; subpoenas and subpoenas duces tecum.
Departmental powers; hearings; distress warrants; bonds; subpoenas and subpoenas duces tecum.
212.14 Departmental powers; hearings; distress warrants; bonds; subpoenas and subpoenas duces tecum.—
(1) Any person required to pay a tax imposed under this chapter, or to make a return, either or both, and who renders a return or makes a payment of a tax with intent to deceive or defraud the state, and to prevent the state from collecting the amount of taxes imposed by this chapter, or otherwise fails to comply with the provisions of this chapter for the taxable period for which any return is made, or any tax is paid, or any report is made to the department, may be required by the department to show cause at a time and place to be set by the department, after 10 days’ notice in writing requiring such books, records, or papers as the department may require relating to the business of such person for such tax period, and the department may require such person, or persons, or their employee or employees to give testimony under oath and answer interrogatories by the department, or an assistant, respecting the sale, use, consumption, distribution, or storage rental or license for use of real or personal property or services within the state, or admissions collected therein, or the failure to make a true report thereof, as provided by this chapter, or failure to pay the true amount of the tax required to be paid under this chapter. At said hearing, in the event such person fails to produce such books, records, or papers, or to appear and answer questions within the scope of investigation relating to matters concerning taxes to be imposed under this chapter, or prevents or impedes his or her agents or employees from giving testimony, then the department is authorized under this chapter to estimate any unpaid deficiencies in taxes to be assessed against such person upon such information as may be available to it and to issue a distress warrant for the collection of such taxes, interest, or penalties estimated by him or her to be due and payable, and such assessment shall be deemed prima facie correct. In such cases said warrant shall be issued to any sheriff in the state where such person owns or possesses any property and such property as may be required to satisfy any such taxes, interest, or penalties shall be by such sheriff seized and sold under said distress warrant in the same manner as property is permitted to be seized and sold under distress warrants issued to secure the payments of delinquent taxes as hereinafter provided, and the department shall also have the right to writ of garnishment to subject any indebtedness due to the delinquent dealer by a third person in any goods, money, chattels, or effects of the delinquent dealer in the hands, possession, or control of the third person in the manner provided by law. Respecting the place for the holding of a hearing by the department or its agents as provided in this section, the person whose tax return or report being investigated may by written request to the department require the hearing be set at a place within the judicial circuit of Florida wherein the person’s business is located or within the judicial circuit of Florida wherein such person’s books and records are kept. If there is jeopardy to the revenue and jeopardy is asserted in or with an assessment, the department shall proceed in the manner specified for jeopardy assessment in s. 213.732.
(2) Wherever returns are required to be made to the department hereunder the full amount of the taxes required to be paid as shown by said return shall be paid and accompany said return, and the failure to remit said full amount of taxes at the time of making said return shall cause said taxes to become delinquent. All taxes and all interest and penalties imposed under this chapter shall be paid to the department at Tallahassee, or to such designated offices throughout the state as the department may from time to time designate and in the form of remittance required by it.
(3) The department may require all reports of taxes to be paid under this chapter to be accompanied with a written statement, of the person or by an officer of any firm or corporation required to pay such taxes setting forth such facts as the department may reasonably require in order to advise the department as to the amount of taxes that are due and payable upon said return. Filing of return not accompanied by payment is prima facie evidence of conversion of the money due. Any person or any duly authorized corporation officer or agent, members of any firm or incorporated society, or organization who refuses to make a return and pay the taxes due, as required by the department and in the manner and in the form that the department may require, or to state in writing that the return is correct to the best of his or her knowledge and belief, as so required by the department, shall be subject to a penalty of 6 percent per annum of the amount due and shall upon conviction, be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. The signing of a written return shall have the same legal effect as if made under oath without the necessity of appending such oath thereto.
(4) In all cases where it is necessary to ensure compliance with this chapter, the department shall require a cash deposit, bond, or other security as a condition to a person obtaining or retaining a dealer’s certificate of registration under this chapter. Such bond must be in the form and amount the department deems appropriate under the particular circumstances. A person failing to produce such cash deposit, bond, or other security is not entitled to obtain or retain a dealer’s certificate of registration under this chapter, and the Department of Legal Affairs is hereby authorized to proceed by injunction, if requested by the Department of Revenue, to prevent such person from doing business subject to this chapter until such cash deposit, bond, or other security is posted with the department, and any temporary injunction for this purpose may be granted by any judge or chancellor authorized by law to grant injunctions. Any security required to be deposited may be sold by the department at public sale if necessary in order to recover any tax, interest, or penalty due. Notice of such sale may be served personally or by mail upon the person who deposited the security. If by mail, notice sent to the last known address as it appears on the records of the department is sufficient for the purpose of this requirement. Upon such sale, the surplus, if any, above the amount due under this chapter shall be returned to the person who deposited the security. The department may adopt rules necessary to administer this subsection. For the purpose of the cash deposit, bond, or other security required by this subsection, the term “person” includes:
(a) Those entities listed in s. 212.02(12).
(b) An individual or entity owning a controlling interest in a business.
(c) An individual or entity that acquired an ownership interest or a controlling interest in a business that would otherwise be liable for posting a cash deposit, bond, or other security, unless the department has determined that the individual or entity is not liable for the taxes, interest, or penalties described in s. 213.758.
(d) An individual or entity seeking to obtain a dealer’s certificate of registration for a business that will be operated at the same location as a previous business that would otherwise have been liable for posting a cash deposit, bond, or other security, if the individual or entity fails to provide evidence that the business was acquired for consideration in an arms-length transaction.
(5) Any person entering into a contract for the repair, alteration, construction, or improvement of realty who is required to obtain a contractor’s occupational license under the laws of this state shall, before entering into the performance of such contract, secure a dealer’s certificate of registration, unless such person has held such contractor’s occupational license for a period of at least 12 months immediately preceding the date of the contract. As a prerequisite for the issuance of such dealer’s certificate of registration, the dealer shall execute and file with the department a good and valid bond endorsed by a surety company authorized to do business in this state, or with sufficient sureties to be approved by the department, conditioned that all taxes which may accrue to the state under this chapter will be paid when due; provided, however, that any taxpayer may pay the tax in advance on any contract in lieu of furnishing bond. Every person failing to procure the certificate of registration required by this law shall be denied the right to perform such contract until he or she complies with such requirement, and the Department of Legal Affairs is hereby authorized to proceed by injunction, when so requested by the Department of Revenue, to prevent any activity in the performance of such contract until the certificate of registration is secured, and any temporary injunction enjoining the execution of such contract may be granted without notice by any judge or chancellor now authorized by law to grant injunctions. The bond shall remain in full force and effect during the terms of the contract or until such time as the department has issued a formal certificate of clearance stating that the tax due on the contract has been paid.
(6) The department or any person authorized by it in writing is authorized to make and sign assessments, tax warrants, assignments of tax warrants and satisfaction of tax warrants.
(7)(a) For purposes of collection and enforcement of taxes, penalties, and interest levied under this chapter, the department may issue subpoenas or subpoenas duces tecum compelling the attendance and testimony of witnesses and the production of books, records, written materials, and electronically recorded information. Subpoenas shall be issued with the written and signed approval of the executive director or his or her designee on written and sworn application by any employee of the department. The application must set forth the reason for the application, the name of the person subpoenaed, the time and place of appearance of the witness, and a description of any books, records, or electronically recorded information to be produced, together with a statement by the applicant that the department has unsuccessfully attempted other reasonable means of securing information and that the testimony of the witness or the written or electronically recorded materials sought in the subpoena are necessary for the collection of taxes, penalty, or interest or the enforcement of the taxes levied under this chapter. A subpoena shall be served in the manner provided by law and by the Florida Rules of Civil Procedure and shall be returnable only during regular business hours and at least 20 calendar days after the date of service of the subpoena. Any subpoena to which this subsection applies shall identify the taxpayer to whom the subpoena relates and to whom the records pertain and shall provide other information to enable the person subpoenaed to locate the records required under the subpoena. The department shall give notice to the taxpayer to whom the subpoena relates within 3 days of the day on which the service of the subpoena is made. Within 14 days after service of the subpoena, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials. If objection is made, the department shall not be entitled to inspect and copy the materials, except pursuant to an order of the circuit court. If an objection is made, the department may petition any circuit court for an order to comply with the subpoena. The subpoena shall contain a written notice of the right to object to the subpoena. Every subpoena served upon the witness or records custodian must be accompanied by a copy of the provisions of this subsection. If a person refuses to obey a subpoena or subpoena duces tecum, the department may apply to any circuit court of this state to enforce compliance with the subpoena. Witnesses shall be paid mileage and witness fees as authorized for witnesses in civil cases.
(b)1. If any subpoena is served on any person who is a third-party recordkeeper, and the subpoena requires the production of any portion of records made or kept of the business transactions or affairs of any person other than the person subpoenaed who is identified in the description of the record contained in the subpoena, then notice of the subpoena shall be given to any person to whom the records pertain and the taxpayer to whom the subpoena relates within 3 days of the day on which the service on the third-party recordkeeper is made. The notice shall be accompanied by a copy of the subpoena which has been served and shall contain directions for staying compliance with the subpoena under subparagraph (c)2.
2. The notice shall be sufficient if, on or before the third day, the notice is delivered in hand to the person entitled to notice or is mailed by certified or registered mail to the last mailing address of the person or, in the absence of a last known address, is left with the person subpoenaed.
3. For purposes of this subsection, “third-party recordkeeper” means:
a. Any mutual savings bank, cooperative bank, domestic building and loan association, or other savings institution chartered and supervised as a savings and loan or similar association under federal or state law; a bank as defined in s. 581 of the Internal Revenue Code; or any credit union within the meaning of s. 501(c)(14)(A) of the Internal Revenue Code;
b. Any consumer reporting agency as defined under s. 603(f) of the Fair Credit Reporting Act, 15 U.S.C. s. 1681a(f);
c. Any person extending credit through the use of credit cards or similar devices;
d. Any broker as defined in s. 3(a)(4) of the Securities Exchange Act of 1934, 15 U.S.C. s. 78c(a)(4);
e. Any attorney;
f. Any accountant;
g. Any barter exchange as defined in s. 6045(c)(3) of the Internal Revenue Code; or
h. Any regulated investment company as defined in s. 851 of the Internal Revenue Code.
4. This paragraph does not apply to a subpoena served on the person with respect to whose liability the subpoena is issued or an officer or employee of the person; or to a subpoena to determine whether or not records of the business transactions or affairs of an identified person have been made or kept; or to a subpoena described in paragraph (f).
(c)1. Notwithstanding any other law or rule of law, a person who is entitled to notice of a subpoena under paragraph (b) and the taxpayer to whom the subpoena relates shall have the right to intervene in any proceeding with respect to the enforcement of the subpoena under paragraph (a).
2. Notwithstanding any other law or rule of law, a person who is entitled to notice of a subpoena under paragraph (b) and the taxpayer to whom the subpoena relates shall have the right to stay compliance with the subpoena if, not later than the 14th day after the day the notice is given in the manner provided in subparagraph (b)2.:
a. Notice in writing is given to the person subpoenaed not to comply with the subpoena.
b. A copy of the notice not to comply with the subpoena is mailed by registered or certified mail to the person and to the department.
c. Suit is filed against the department in the circuit court to stay compliance with the subpoena.
(d) No examination of any records required to be produced under a subpoena as to which notice is required under paragraph (b) may be made:
1. Before the expiration of the 14-day period allowed for the notice not to comply under subparagraph (c)2.; or
2. When the requirements of subparagraph (c)2. have been met, except in accordance with an order issued by the circuit court authorizing examination of the records or with the consent of the person staying compliance.
(e) Any subpoena issued under paragraph (a) that does not identify the person with respect to whose liability the subpoena is issued may be served only after a proceeding in any circuit court in which the department establishes that:
1. The subpoena relates to the investigation of a particular person or ascertainable group or class of persons.
2. There is reasonable basis for believing that the person or group or class of persons may fail or may have failed to comply with any provision of state law.
3. The information sought to be obtained from the examination of the records and the identity of the person or persons with respect to whose liability the subpoena is issued is not readily available from other sources.
(f) In the case of a subpoena issued under paragraph (a), the provisions of subparagraph (b)1. and paragraph (c) do not apply if, upon petition by the department, a circuit court determines, on the basis of the facts and circumstances alleged, that there is reasonable cause to believe the giving of notice may lead to attempts to conceal, destroy, or alter records relevant to the examination, to prevent the communication of information from other persons through intimidation, bribery, or collusion, or to flee to avoid prosecution, testifying, or production of records.
(g)1. Any circuit court has jurisdiction to hear and determine proceedings brought under paragraph (e) or paragraph (f). The determinations required to be made under paragraphs (e) and (f) shall be ex parte and shall be made solely upon the petition and supporting affidavits. An order denying the petition shall be deemed a final order that may be appealed.
2. Except for cases the court considers of greater importance, any proceeding brought for the enforcement of any subpoena, or a proceeding under this subsection, and appeals, take precedence on the docket over all cases and shall be assigned for hearing and decided at the earliest practicable date.
(h) The department shall by rule establish the rates and conditions for payments to reimburse reasonably necessary costs directly incurred by third-party recordkeepers in searching for, reproducing, or transporting books, papers, records, or other data required to be produced by subpoena upon request of the department. The reimbursement shall be in addition to mileage and fees paid under paragraph (a).
(i)1. Except as provided in subparagraph 2., an action initiated in circuit court pursuant to this subsection shall be filed in the circuit court in the county where:
a. The taxpayer to whom the subpoena relates resides or maintains his or her principal commercial domicile in this state;
b. The person subpoenaed resides or maintains his or her principal commercial domicile in this state; or
c. The person to whom the records pertain resides or maintains his or her principal commercial domicile in this state.
2. Venue in an action initiated in circuit court pursuant to this subsection by a person who is not a resident of this state or does not maintain a commercial domicile in this state shall be in Leon County.
3. Venue in an action initiated in circuit court pursuant to paragraph (e) shall be in the Second Judicial Circuit Court in and for Leon County.
History.—s. 14, ch. 26319, 1949; s. 9, ch. 29883, 1955; s. 24, ch. 57-1; s. 1, ch. 57-109; s. 2, ch. 59-426; ss. 1, 2, 3, ch. 59-449; s. 6, ch. 61-276; s. 7, ch. 63-253; s. 12, ch. 65-329; s. 5, ch. 65-371; s. 2, ch. 65-420; s. 1, ch. 65-2444; s. 11, ch. 67-180; ss. 11, 21, 35, ch. 69-106; s. 127, ch. 71-136; s. 2, ch. 73-240; s. 48, ch. 85-342; s. 77, ch. 86-152; ss. 19, 58, 90, ch. 87-6; s. 58, ch. 87-101; s. 23, ch. 91-224; s. 11, ch. 92-173; s. 13, ch. 92-315; s. 12, ch. 93-233; s. 1119, ch. 95-147; s. 10, ch. 97-99; s. 5, ch. 2014-40.