Florida Senate - 2011                                    SB 1810
       
       
       
       By Senator Benacquisto
       
       
       
       
       27-01652B-11                                          20111810__
    1                        A bill to be entitled                      
    2         An act relating to energy; amending s. 212.08, F.S.;
    3         providing additional definitions for purposes of the
    4         exemption for sales or use of equipment, machinery,
    5         and other materials for renewable energy technologies;
    6         including under the exemption materials used in
    7         distributing renewable diesel fuel and renewable fuel
    8         oil; delaying expiration of the exemption; amending s.
    9         220.192, F.S.; providing additional definitions for
   10         purposes of the tax credit for investment in renewable
   11         energy technologies; amending s. 220.193, F.S.;
   12         extending the dates for which certain renewable energy
   13         production tax credits are available; deleting an
   14         expired provision; amending s. 570.074, F.S.; renaming
   15         the Office of Water Coordination as the “Office of
   16         Energy and Water”; adding certain energy policy to the
   17         jurisdiction of the office; repealing s. 570.954,
   18         F.S., relating to a requirement that the Department
   19         Agriculture and Consumer Services coordinate with and
   20         solicit expertise of the state energy office within
   21         the Department of Environmental Protection when
   22         developing and implementing the farm-to-fuel
   23         initiative; providing an effective date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Paragraph (ccc) of subsection (7) of section
   28  212.08, Florida Statutes, is amended to read:
   29         212.08 Sales, rental, use, consumption, distribution, and
   30  storage tax; specified exemptions.—The sale at retail, the
   31  rental, the use, the consumption, the distribution, and the
   32  storage to be used or consumed in this state of the following
   33  are hereby specifically exempt from the tax imposed by this
   34  chapter.
   35         (7) MISCELLANEOUS EXEMPTIONS.—Exemptions provided to any
   36  entity by this chapter do not inure to any transaction that is
   37  otherwise taxable under this chapter when payment is made by a
   38  representative or employee of the entity by any means,
   39  including, but not limited to, cash, check, or credit card, even
   40  when that representative or employee is subsequently reimbursed
   41  by the entity. In addition, exemptions provided to any entity by
   42  this subsection do not inure to any transaction that is
   43  otherwise taxable under this chapter unless the entity has
   44  obtained a sales tax exemption certificate from the department
   45  or the entity obtains or provides other documentation as
   46  required by the department. Eligible purchases or leases made
   47  with such a certificate must be in strict compliance with this
   48  subsection and departmental rules, and any person who makes an
   49  exempt purchase with a certificate that is not in strict
   50  compliance with this subsection and the rules is liable for and
   51  shall pay the tax. The department may adopt rules to administer
   52  this subsection.
   53         (ccc) Equipment, machinery, and other materials for
   54  renewable energy technologies.—
   55         1. As used in this paragraph, the term:
   56         a. “Biodiesel” means the mono-alkyl esters of long-chain
   57  fatty acids derived from plant or animal matter for use as a
   58  source of energy and meeting the specifications for biodiesel
   59  and biodiesel blends with petroleum products as adopted by the
   60  Department of Agriculture and Consumer Services. Biodiesel may
   61  refer to biodiesel blends designated BXX, where XX represents
   62  the volume percentage of biodiesel fuel in the blend.
   63         b. “Ethanol” means an anhydrous denatured alcohol produced
   64  by the conversion of carbohydrates meeting the specifications
   65  for fuel ethanol and fuel ethanol blends with petroleum products
   66  as adopted by the Department of Agriculture and Consumer
   67  Services. Ethanol may refer to fuel ethanol blends designated
   68  EXX, where XX represents the volume percentage of fuel ethanol
   69  in the blend.
   70         c. “Hydrogen fuel cells” means equipment using hydrogen or
   71  a hydrogen-rich fuel in an electrochemical process to generate
   72  energy, electricity, or the transfer of heat.
   73         d. “Renewable diesel fuel” means liquid fuel for use in
   74  diesel-powered engines which is derived from biomass that meets:
   75         (I)The registration requirements for fuel and fuel
   76  additives established by the Environmental Protection Agency;
   77  and
   78         (II)The specifications and requirements as adopted by the
   79  Department of Agriculture and Consumer Services.
   80         e. “Renewable fuel oil” means liquid fuel for use in fuel
   81  oil applications which is derived from biomass that meets:
   82         (I)The registration requirements for fuel and fuel
   83  additives established by the Environmental Protection Agency;
   84  and
   85         (II)The specifications and requirements as adopted by the
   86  Department of Agriculture and Consumer Services.
   87         2. The sale or use of the following in the state is exempt
   88  from the tax imposed by this chapter:
   89         a. Hydrogen-powered vehicles, materials incorporated into
   90  hydrogen-powered vehicles, and hydrogen-fueling stations, up to
   91  a limit of $2 million in tax each state fiscal year for all
   92  taxpayers.
   93         b. Commercial stationary hydrogen fuel cells, up to a limit
   94  of $1 million in tax each state fiscal year for all taxpayers.
   95         c. Materials used in the distribution of biodiesel (B10
   96  B100), and ethanol (E10-E100), renewable diesel fuel, and
   97  renewable fuel oil, including fueling infrastructure,
   98  transportation, and storage, up to a limit of $1 million in tax
   99  each state fiscal year for all taxpayers. Gasoline fueling
  100  station pump retrofits for ethanol (E10-E100) distribution
  101  qualify for the exemption provided in this sub-subparagraph.
  102         3. The Florida Energy and Climate Commission shall provide
  103  to the department a list of items eligible for the exemption
  104  provided in this paragraph.
  105         4.a. The exemption provided in this paragraph shall be
  106  available to a purchaser only through a refund of previously
  107  paid taxes. An eligible item is subject to refund one time. A
  108  person who has received a refund on an eligible item shall
  109  notify the next purchaser of the item that such item is no
  110  longer eligible for a refund of paid taxes. This notification
  111  shall be provided to each subsequent purchaser on the sales
  112  invoice or other proof of purchase.
  113         b. To be eligible to receive the exemption provided in this
  114  paragraph, a purchaser shall file an application with the
  115  Florida Energy and Climate Commission. The application shall be
  116  developed by the Florida Energy and Climate Commission, in
  117  consultation with the department, and shall require:
  118         (I) The name and address of the person claiming the refund.
  119         (II) A specific description of the purchase for which a
  120  refund is sought, including, when applicable, a serial number or
  121  other permanent identification number.
  122         (III) The sales invoice or other proof of purchase showing
  123  the amount of sales tax paid, the date of purchase, and the name
  124  and address of the sales tax dealer from whom the property was
  125  purchased.
  126         (IV) A sworn statement that the information provided is
  127  accurate and that the requirements of this paragraph have been
  128  met.
  129         c. Within 30 days after receipt of an application, the
  130  Florida Energy and Climate Commission shall review the
  131  application and shall notify the applicant of any deficiencies.
  132  Upon receipt of a completed application, the Florida Energy and
  133  Climate Commission shall evaluate the application for exemption
  134  and issue a written certification that the applicant is eligible
  135  for a refund or issue a written denial of such certification
  136  within 60 days after receipt of the application. The Florida
  137  Energy and Climate Commission shall provide the department with
  138  a copy of each certification issued upon approval of an
  139  application.
  140         d. Each certified applicant shall be responsible for
  141  forwarding a certified copy of the application and copies of all
  142  required documentation to the department within 6 months after
  143  certification by the Florida Energy and Climate Commission.
  144         e. A refund approved pursuant to this paragraph shall be
  145  made within 30 days after formal approval by the department.
  146         f. The Florida Energy and Climate Commission may adopt the
  147  form for the application for a certificate, requirements for the
  148  content and format of information submitted to the Florida
  149  Energy and Climate Commission in support of the application,
  150  other procedural requirements, and criteria by which the
  151  application will be determined by rule. The department may adopt
  152  all other rules pursuant to ss. 120.536(1) and 120.54 to
  153  administer this paragraph, including rules establishing
  154  additional forms and procedures for claiming this exemption.
  155         g. The Florida Energy and Climate Commission shall be
  156  responsible for ensuring that the total amounts of the
  157  exemptions authorized do not exceed the limits as specified in
  158  subparagraph 2.
  159         5. The Florida Energy and Climate Commission shall
  160  determine and publish on a regular basis the amount of sales tax
  161  funds remaining in each fiscal year.
  162         6. This paragraph expires July 1, 2015 2010.
  163         Section 2. Subsection (1) of section 220.192, Florida
  164  Statutes, is amended to read:
  165         220.192 Renewable energy technologies investment tax
  166  credit.—
  167         (1) DEFINITIONS.—For purposes of this section, the term:
  168         (a) “Biodiesel” means biodiesel as defined in s.
  169  212.08(7)(ccc).
  170         (b) “Corporation” includes a general partnership, limited
  171  partnership, limited liability company, unincorporated business,
  172  or other business entity, including entities taxed as
  173  partnerships for federal income tax purposes.
  174         (c) “Eligible costs” means:
  175         1. Seventy-five percent of all capital costs, operation and
  176  maintenance costs, and research and development costs incurred
  177  between July 1, 2006, and June 30, 2015 2010, up to a limit of
  178  $3 million per state fiscal year for all taxpayers, in
  179  connection with an investment in hydrogen-powered vehicles and
  180  hydrogen vehicle fueling stations in the state, including, but
  181  not limited to, the costs of constructing, installing, and
  182  equipping such technologies in the state.
  183         2. Seventy-five percent of all capital costs, operation and
  184  maintenance costs, and research and development costs incurred
  185  between July 1, 2006, and June 30, 2015 2010, up to a limit of
  186  $1.5 million per state fiscal year for all taxpayers, and
  187  limited to a maximum of $12,000 per fuel cell, in connection
  188  with an investment in commercial stationary hydrogen fuel cells
  189  in the state, including, but not limited to, the costs of
  190  constructing, installing, and equipping such technologies in the
  191  state.
  192         3. Seventy-five percent of all capital costs, operation and
  193  maintenance costs, and research and development costs incurred
  194  between July 1, 2006, and June 30, 2015 2010, up to a limit of
  195  $6.5 million per state fiscal year for all taxpayers, in
  196  connection with an investment in the production, storage, and
  197  distribution of biodiesel (B10-B100), and ethanol (E10-E100),
  198  renewable diesel fuel, and renewable fuel oil in the state,
  199  including the costs of constructing, installing, and equipping
  200  such technologies in the state. Gasoline fueling station pump
  201  retrofits for ethanol (E10-E100) distribution qualify as an
  202  eligible cost under this subparagraph.
  203         (d) “Ethanol” means ethanol as defined in s.
  204  212.08(7)(ccc).
  205         (e) “Hydrogen fuel cell” means hydrogen fuel cell as
  206  defined in s. 212.08(7)(ccc).
  207         (f) “Renewable diesel fuel” means renewable diesel fuel as
  208  defined in s. 212.08(7)(ccc).
  209         (g) “Renewable fuel oil” means renewable fuel oil as
  210  defined in s. 212.08(7)(ccc).
  211         (h)(f) “Taxpayer” includes a corporation as defined in
  212  paragraph (b) or s. 220.03.
  213         Section 3. Paragraphs (c) and (e) of subsection (2) and
  214  subsections (3) and (5) of section 220.193, Florida Statutes,
  215  are amended to read:
  216         220.193 Florida renewable energy production credit.—
  217         (2) As used in this section, the term:
  218         (c) “Expanded facility” shall mean a Florida renewable
  219  energy facility that increases its electrical production and
  220  sale by more than 5 percent above the facility’s electrical
  221  production and sale during the 2010 2005 calendar year.
  222         (e) “New facility” shall mean a Florida renewable energy
  223  facility that is operationally placed in service after May 1,
  224  2011 2006.
  225         (3) An annual credit against the tax imposed by this
  226  section shall be allowed to a taxpayer, based on the taxpayer’s
  227  production and sale of electricity from a new or expanded
  228  Florida renewable energy facility. For a new facility, the
  229  credit shall be based on the taxpayer’s sale of the facility’s
  230  entire electrical production. For an expanded facility, the
  231  credit shall be based on the increases in the facility’s
  232  electrical production which that are achieved after May 1, 2011
  233  2006.
  234         (a) The credit shall be $0.01 for each kilowatt-hour of
  235  electricity produced and sold by the taxpayer to an unrelated
  236  party during a given tax year.
  237         (b) The credit may be claimed for electricity produced and
  238  sold on or after January 1, 2012 2007. Beginning in 2012 2008
  239  and continuing until 2016 2011, each taxpayer claiming a credit
  240  under this section must first apply to the department by
  241  February 1 of each year for an allocation of available credit.
  242  The department, in consultation with the commission, shall
  243  develop an application form. The application form shall, at a
  244  minimum, require a sworn affidavit from each taxpayer certifying
  245  the increase in production and sales that form the basis of the
  246  application and certifying that all information contained in the
  247  application is true and correct.
  248         (c) If the amount of credits applied for each year exceeds
  249  $5 million, the department shall award to each applicant a
  250  prorated amount based on each applicant’s increased production
  251  and sales and the increased production and sales of all
  252  applicants.
  253         (d) If the credit granted pursuant to this section is not
  254  fully used in one year because of insufficient tax liability on
  255  the part of the taxpayer, the unused amount may be carried
  256  forward for a period not to exceed 5 years. The carryover credit
  257  may be used in a subsequent year when the tax imposed by this
  258  chapter for such year exceeds the credit for such year, after
  259  applying the other credits and unused credit carryovers in the
  260  order provided in s. 220.02(8).
  261         (e) A taxpayer that files a consolidated return in this
  262  state as a member of an affiliated group under s. 220.131(1) may
  263  be allowed the credit on a consolidated return basis up to the
  264  amount of tax imposed upon the consolidated group.
  265         (f)1. Tax credits that may be available under this section
  266  to an entity eligible under this section may be transferred
  267  after a merger or acquisition to the surviving or acquiring
  268  entity and used in the same manner with the same limitations.
  269         2. The entity or its surviving or acquiring entity as
  270  described in subparagraph 1. may transfer any unused credit in
  271  whole or in units of no less than 25 percent of the remaining
  272  credit. The entity acquiring such credit may use it in the same
  273  manner and with the same limitations under this section. Such
  274  transferred credits may not be transferred again although they
  275  may succeed to a surviving or acquiring entity subject to the
  276  same conditions and limitations as described in this section.
  277         3. In the event the credit provided for under this section
  278  is reduced as a result of an examination or audit by the
  279  department, such tax deficiency shall be recovered from the
  280  first entity or the surviving or acquiring entity to have
  281  claimed such credit up to the amount of credit taken. Any
  282  subsequent deficiencies shall be assessed against any entity
  283  acquiring and claiming such credit, or in the case of multiple
  284  succeeding entities in the order of credit succession.
  285         (g) Notwithstanding any other provision of this section,
  286  credits for the production and sale of electricity from a new or
  287  expanded Florida renewable energy facility may be earned between
  288  January 1, 2012 2007, and June 30, 2015 2010. The combined total
  289  amount of tax credits which may be granted for all taxpayers
  290  under this section is limited to $5 million per state fiscal
  291  year.
  292         (h) A taxpayer claiming a credit under this section shall
  293  be required to add back to net income that portion of its
  294  business deductions claimed on its federal return paid or
  295  incurred for the taxable year which is equal to the amount of
  296  the credit allowable for the taxable year under this section.
  297         (i) A taxpayer claiming credit under this section may not
  298  claim a credit under s. 220.192. A taxpayer claiming credit
  299  under s. 220.192 may not claim a credit under this section.
  300         (j) When an entity treated as a partnership or a
  301  disregarded entity under this chapter produces and sells
  302  electricity from a new or expanded renewable energy facility,
  303  the credit earned by such entity shall pass through in the same
  304  manner as items of income and expense pass through for federal
  305  income tax purposes. When an entity applies for the credit and
  306  the entity has received the credit by a pass-through, the
  307  application must identify the taxpayer that passed the credit
  308  through, all taxpayers that received the credit, and the
  309  percentage of the credit that passes through to each recipient
  310  and must provide other information that the department requires.
  311         (k) A taxpayer’s use of the credit granted pursuant to this
  312  section does not reduce the amount of any credit available to
  313  such taxpayer under s. 220.186.
  314         (5) This section shall take effect upon becoming law and
  315  shall apply to tax years beginning on and after January 1, 2007.
  316         Section 4. Section 570.074, Florida Statutes, is amended to
  317  read:
  318         570.074 Department of Agriculture and Consumer Services;
  319  energy and water policy coordination.—The commissioner may
  320  create an Office of Energy and Water Coordination under the
  321  supervision of a senior manager exempt under s. 110.205 in the
  322  Senior Management Service. The commissioner may designate the
  323  bureaus and positions in the various organizational divisions of
  324  the department which that report to this office relating to any
  325  matter over which the department has jurisdiction in matters
  326  relating to energy and water policy affecting agriculture,
  327  application of such policies, and coordination of such matters
  328  with state and federal agencies.
  329         Section 5. Subsection (3) of section 570.954, Florida
  330  Statutes, is repealed.
  331         Section 6. This act shall take effect July 1, 2011.