Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1514
       
       
       
       
       
       
                                Barcode 243574                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/16/2012           .                                
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       The Committee on Banking and Insurance (Bennett) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (2) of section 212.06, Florida
    6  Statutes, is amended to read:
    7         212.06 Sales, storage, use tax; collectible from dealers;
    8  “dealer” defined; dealers to collect from purchasers;
    9  legislative intent as to scope of tax.—
   10         (2)(a) The term “dealer,” as used in this chapter, means
   11  any includes every person who:
   12         (a) Manufactures or produces tangible personal property for
   13  sale at retail; for use, consumption, or distribution; or for
   14  storage to be used or consumed in this state.
   15         (b) The term “dealer” is further defined to mean every
   16  person, as used in this chapter, who Imports, or causes to be
   17  imported, tangible personal property from any state or foreign
   18  country for sale at retail; for use, consumption, or
   19  distribution; or for storage to be used or consumed in this
   20  state.
   21         (c) The term “dealer” is further defined to mean every
   22  person, as used in this chapter, who Sells at retail or who
   23  offers for sale at retail, or who has in his or her possession
   24  for sale at retail; or for use, consumption, or distribution; or
   25  for storage to be used or consumed in this state, tangible
   26  personal property as defined herein, including a retailer who
   27  transacts a mail order sale.
   28         (d) The term “dealer” is further defined to mean any person
   29  who Has sold at retail; or used, or consumed, or distributed; or
   30  stored for use or consumption in this state, tangible personal
   31  property and who cannot prove that the tax levied by this
   32  chapter has been paid on the sale at retail, the use, the
   33  consumption, the distribution, or the storage of such tangible
   34  personal property. However, The term “dealer” does not include
   35  mean a person who is not a “dealer” as otherwise defined in
   36  under the definition of any other paragraph of this subsection
   37  and whose only owned or leased property (including property
   38  owned or leased by an affiliate) in this state is located at the
   39  premises of a printer with which it has contracted for printing,
   40  if such property consists of the final printed product, property
   41  which becomes a part of the final printed product, or property
   42  from which the printed product is produced.
   43         (e) The term “dealer” is further defined to mean any
   44  person, as used in this chapter, who Leases or rents tangible
   45  personal property, as defined in this chapter, for a
   46  consideration, permitting the use or possession of such property
   47  without transferring title thereto, except as expressly provided
   48  for to the contrary in this chapter herein.
   49         (f) The term “dealer” is further defined to mean any
   50  person, as used in this chapter, who Maintains or uses has
   51  within this state, directly or by a subsidiary, an office,
   52  distributing house, salesroom, or house, warehouse, or other
   53  place of business operated by any person other than a common
   54  carrier acting in the capacity of a common carrier.
   55         (g) “Dealer” also means and includes every person who
   56  solicits business either by direct representatives, indirect
   57  representatives, or manufacturers’ agents; by distribution of
   58  catalogs or other advertising matter; or by any other means
   59  whatsoever, and by reason thereof receives orders for tangible
   60  personal property from consumers for use, consumption,
   61  distribution, and storage for use or consumption in the state;
   62  such dealer shall collect the tax imposed by this chapter from
   63  the purchaser, and no action, either in law or in equity, on a
   64  sale or transaction as provided by the terms of this chapter may
   65  be had in this state by any such dealer unless it is
   66  affirmatively shown that the provisions of this chapter have
   67  been fully complied with.
   68         (h) “Dealer” also means and includes every person who, As a
   69  representative, agent, or solicitor of an out-of-state principal
   70  or principals, solicits, receives, and accepts orders from
   71  consumers in the state for future delivery and whose principal
   72  refuses to register as a dealer.
   73         (i) Constitutes “Dealer” also means and includes the state
   74  or any, county, municipality, district any political
   75  subdivision, agency, bureau, or department, or other state or
   76  local governmental instrumentality.
   77         (j) The term “dealer” is further defined to mean any person
   78  who Leases, or grants a license to use, occupy, or enter upon,
   79  living quarters, sleeping or housekeeping accommodations in
   80  hotels, apartment houses, roominghouses, tourist or trailer
   81  camps, real property, space or spaces in parking lots or garages
   82  for motor vehicles, docking or storage space or spaces for boats
   83  in boat docks or marinas, or tie-down or storage space or spaces
   84  for aircraft at airports. The term includes “dealer” also means
   85  any person who has leased, occupied, or used or was entitled to
   86  use any living quarters, sleeping or housekeeping accommodations
   87  in hotels, apartment houses, roominghouses, tourist or trailer
   88  camps, real property, space or spaces in parking lots or garages
   89  for motor vehicles, or docking or storage space or spaces for
   90  boats in boat docks or marinas, or who has purchased
   91  communication services or electric power or energy, and who
   92  cannot prove that the tax levied by this chapter has been paid
   93  to the vendor or lessor on any such transactions. The term
   94  “dealer” does not include any person who leases, lets, rents, or
   95  grants a license to use, occupy, or enter upon any living
   96  quarters, sleeping quarters, or housekeeping accommodations in
   97  apartment houses, roominghouses, tourist camps, or trailer
   98  camps, and who exclusively enters into a bona fide written
   99  agreement for continuous residence for longer than 6 months in
  100  duration with any person who leases, lets, rents, or is granted
  101  a license to use such property.
  102         (k) “Dealer” also means any person who Sells, provides, or
  103  performs a service taxable under this chapter. The term includes
  104  “Dealer” also means any person who purchases, uses, or consumes
  105  a service taxable under this chapter who cannot prove that the
  106  tax levied by this chapter has been paid to the seller of the
  107  taxable service.
  108         (l) “Dealer” also means any person who Solicits, offers,
  109  provides, enters into, issues, or delivers any service warranty
  110  taxable under this chapter, or who receives, on behalf of such a
  111  person, any consideration from a service warranty holder.
  112         Section 2. Section 212.0596, Florida Statutes, is amended
  113  to read:
  114         212.0596 Taxation of mail order sales.—
  115         (1) For purposes of this chapter, a “mail order sale” is a
  116  sale of tangible personal property, ordered by mail, Internet,
  117  or other means of communication, from a dealer who receives the
  118  order in another state of the United States, or in a
  119  commonwealth, territory, or other area under the jurisdiction of
  120  the United States, and transports the property or causes the
  121  property to be transported, whether or not by mail, from any
  122  jurisdiction of the United States, including this state, to a
  123  person in this state, including the person who ordered the
  124  property.
  125         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
  126  mail order sale is subject to the power of this state to levy
  127  and collect the tax imposed by this chapter when:
  128         (a) The dealer is a corporation doing business under the
  129  laws of this state or is a person domiciled in, a resident of,
  130  or a citizen of, this state;
  131         (b) The dealer maintains retail establishments or offices
  132  in this state, whether the mail order sales thus subject to
  133  taxation by this state result from or are related in any other
  134  way to the activities of such establishments or offices;
  135         (c) The dealer has agents or representatives in this state
  136  who solicit business or transact business on behalf of the
  137  dealer, whether the mail order sales thus subject to taxation by
  138  this state result from or are related in any other way to such
  139  solicitation or transaction of business, except that a printer
  140  who mails or delivers for an out-of-state print purchaser
  141  material the printer printed for it is shall not be deemed to be
  142  the print purchaser’s agent or representative for purposes of
  143  this paragraph;
  144         (d) The property was delivered in this state in fulfillment
  145  of a sales contract that was entered into in this state, in
  146  accordance with applicable conflict of laws rules, when a person
  147  in this state accepted an offer by ordering the property;
  148         (e) The dealer, by purposefully or systematically
  149  exploiting the market provided by this state by any media
  150  assisted, media-facilitated, or media-solicited means,
  151  including, but not limited to, direct mail advertising,
  152  unsolicited distribution of catalogs, computer-assisted
  153  shopping, television, radio, or other electronic media, or
  154  magazine or newspaper advertisements or other media, creates
  155  nexus with this state;
  156         (f) Through compact or reciprocity with another
  157  jurisdiction of the United States, that jurisdiction uses its
  158  taxing power and its jurisdiction over the retailer in support
  159  of this state’s taxing power;
  160         (d)(g) The dealer consents, expressly or by implication, to
  161  the imposition of the tax imposed by this chapter;
  162         (h) The dealer is subject to service of process under s.
  163  48.181;
  164         (e)(i) The dealer’s mail order sales are subject to the
  165  power of this state to tax sales or to require the dealer to
  166  collect use taxes under a statute or statutes of the United
  167  States;
  168         (f)(j) The dealer owns real property or tangible personal
  169  property that is physically in this state, except that a dealer
  170  whose only property (including property owned by an affiliate)
  171  in this state is located at the premises of a printer with which
  172  the vendor has contracted for printing, and is either a final
  173  printed product, or property which becomes a part of the final
  174  printed product, or property from which the printed product is
  175  produced, is not deemed to own such property for purposes of
  176  this paragraph;
  177         (g)(k)A person, other than a person acting in the capacity
  178  of a common carrier, The dealer, while not having nexus with
  179  this state on any of the bases described in paragraphs (a)-(j)
  180  or paragraph (l), is a corporation that is a member of an
  181  affiliated group of corporations, as defined in s. 1504(a) of
  182  the Internal Revenue Code, whose members are includable under s.
  183  1504(b) of the Internal Revenue Code and whose members are
  184  eligible to file a consolidated tax return for federal corporate
  185  income tax purposes and any parent or subsidiary corporation in
  186  the affiliated group has substantial nexus with this state and:
  187         1. Sells a similar line of products as the dealer and does
  188  so under the same or a similar business name;
  189         2. Maintains an office, distribution facility, warehouse,
  190  storage place, or similar place of business in this state to
  191  facilitate the delivery of property or services sold by the
  192  dealer to the dealer’s customers;
  193         3. Uses trademarks, service marks, or trade names in this
  194  state which are the same or substantially similar to those used
  195  by the dealer;
  196         4. Delivers, installs, assembles, or performs maintenance
  197  services for the dealer’s customers in this state;
  198         5. Facilitates the dealer’s delivery of property to
  199  customers in this state by allowing the dealer’s customers to
  200  pick up property sold by the dealer at an office, distribution
  201  facility, warehouse, storage place, or similar place of business
  202  maintained by the person in this state; or
  203         6. Conducts any other activities in this state which are
  204  significantly associated with the dealer’s ability to establish
  205  and maintain a market in this state for the dealer’s sales on
  206  one or more of the bases described in paragraphs (a)-(j) or
  207  paragraph (l); or
  208         (h)(l) The dealer or the dealer’s activities have
  209  sufficient connection with or relationship to this state or its
  210  residents of some type other than those described in paragraphs
  211  (a)-(g) (a)-(k) to create nexus empowering this state to tax its
  212  mail order sales or to require the dealer to collect sales tax
  213  or accrue use tax.
  214  
  215  Notwithstanding other provisions of law, a dealer is not
  216  required to collect and remit sales or use tax under this
  217  subsection unless the dealer has a physical presence in this
  218  state or the activities conducted in this state on the dealer’s
  219  behalf are significantly associated with the dealer’s ability to
  220  establish and maintain a market for sales in this state.
  221         (3)(a) Notwithstanding other provisions of law or this
  222  section, there is established a rebuttable presumption that
  223  every dealer as defined in s. 212.06(2) who makes a mail order
  224  sale is also subject to the power of this state to levy and
  225  collect the tax imposed by this chapter if the dealer enters
  226  into an agreement with one or more residents of this state under
  227  which the resident, for a commission or other consideration,
  228  directly or indirectly refers potential customers, whether by a
  229  link on an Internet website, an in-person oral presentation,
  230  telemarketing, or otherwise, to the dealer, if the cumulative
  231  gross receipts from sales by the dealer to customers in this
  232  state who are referred to the dealer by all residents having
  233  this type of an agreement with the dealer is in excess of
  234  $10,000 during the 12-month period immediately before the
  235  rebuttable presumption arose.
  236         (b) The presumption in paragraph (a) may be rebutted by the
  237  submission of evidence proving that the residents with whom the
  238  dealer has an agreement did not engage in any activity within
  239  this state that was significantly associated with the dealer’s
  240  ability to establish or maintain the dealer’s market in this
  241  state during the 12 months immediately before the rebuttable
  242  presumption arose. The evidence may consist of sworn affidavits,
  243  obtained and given in good faith, from each resident with whom
  244  the dealer has an agreement attesting that he or she did not
  245  engage in any solicitation in this state on the dealer’s behalf
  246  during the previous year.
  247         (4)(3) Every dealer engaged in the business of making mail
  248  order sales is subject to the requirements of this chapter for
  249  cooperation of dealers in collection of taxes and in
  250  administration of this chapter, except that no fee shall be
  251  imposed upon such dealer for carrying out any required activity.
  252         (5)(4) The department shall, with the consent of another
  253  jurisdiction of the United States whose cooperation is needed,
  254  enforce this chapter in that jurisdiction, either directly or,
  255  at the option of that jurisdiction, through its officers or
  256  employees.
  257         (6)(5) The tax required under this section to be collected
  258  and any amount unreturned to a purchaser that is not tax but was
  259  collected from the purchaser under the representation that it
  260  was tax constitute funds of the State of Florida from the moment
  261  of collection.
  262         (7)(6) Notwithstanding other provisions of law, a dealer
  263  who makes a mail order sale in this state is exempt from
  264  collecting and remitting any local option surtax on the sale,
  265  unless the dealer is located in a county that imposes a surtax
  266  within the meaning of s. 212.054(3)(a), the order is placed
  267  through the dealer’s location in such county, and the property
  268  purchased is delivered into such county or into another county
  269  in this state that levies the surtax, in which case the
  270  provisions of s. 212.054(3)(a) are applicable.
  271         (8)(7) The department may establish by rule procedures for
  272  collecting the use tax from unregistered persons who but for
  273  their mail order purchases would not be required to remit sales
  274  or use tax directly to the department. The procedures may
  275  provide for waiver of registration and registration fees,
  276  provisions for irregular remittance of tax, elimination of the
  277  collection allowance, and nonapplication of local option
  278  surtaxes.
  279         Section 3. (1) The Department of Revenue shall develop a
  280  tracking system, in consultation with the Revenue Estimating
  281  Conference, to determine the amount of sales taxes remitted by
  282  out–of-state dealers who would otherwise not be required to
  283  collect and remit sales taxes in the absence of the amendments
  284  made to s. 212.0596, Florida Statutes, in section 2 of this act.
  285  By February 1 of each year, the Department of Revenue shall
  286  submit a report to the Governor, the President of the Senate,
  287  and the Speaker of the House of Representatives which sets forth
  288  the amount of sales taxes collected and remitted by such dealers
  289  in the previous calendar year and the methodology used to
  290  determine the amount.
  291         (2) By March 1 of each year, the Revenue Estimating
  292  Conference shall use the information provided by the Department
  293  of Revenue pursuant to subsection (1) to determine the amount of
  294  sales taxes remitted in the previous calendar year by such out
  295  of-state dealers who would otherwise not be required to collect
  296  and remit sales taxes and estimate the amount that may be
  297  expected in the following fiscal year.
  298         (3) The Legislature shall use the information provided by
  299  the Department of Revenue and the Revenue Estimating Conference
  300  to develop legislation designed to return the amount of those
  301  sales taxes collected to the taxpayers of this state. The
  302  Legislature may accomplish this by establishing one or more
  303  sales tax holidays designed to reduce tax collections in an
  304  amount not less than the amounts determined by the Revenue
  305  Estimating Conference. If the amounts collected are determined
  306  to be of a recurring nature and sufficient to lower the tax rate
  307  set forth in chapter 212, Florida Statutes, the Legislature may
  308  lower the tax rate and implement other tax relief as it deems
  309  appropriate.
  310         Section 4. This act shall take effect July 1, 2012.
  311  
  312  ================= T I T L E  A M E N D M E N T ================
  313         And the title is amended as follows:
  314         Delete everything before the enacting clause
  315  and insert:
  316                        A bill to be entitled                      
  317         An act relating to the tax on sales, use, and other
  318         transactions; amending s. 212.06, F.S.; revising the
  319         definition of the term “dealer” for purposes relating
  320         to the collection of the tax on sales, use, and other
  321         transactions; amending s. 212.0596, F.S.; revising the
  322         term “mail order sale” to specifically include sales
  323         of tangible personal property ordered by Internet;
  324         deleting certain provisions that specify dealer
  325         activities or other circumstances that subject mail
  326         order sales to this state’s power to levy and collect
  327         the sales and use tax; providing that certain persons
  328         who make mail order sales and who have a substantial
  329         nexus with this state are subject to this state’s
  330         power to levy and collect the sales and use tax when
  331         they engage in certain enumerated activities;
  332         specifying that dealers are not required to collect
  333         and remit sales and use tax unless certain
  334         circumstances exist; creating a rebuttable presumption
  335         that a dealer is subject to the state’s power to levy
  336         and collect the sales or use tax under specified
  337         circumstances; specifying evidentiary proof that may
  338         be submitted to rebut the presumption; requiring that
  339         the Department of Revenue develop a tracking system,
  340         in consultation with the Revenue Estimating
  341         Conference, to determine the amount of sales tax
  342         remitted by out-of-state dealers who would otherwise
  343         not be required to collect and remit sales taxes but
  344         for the amendments made by the act; requiring that the
  345         department submit a report to the Governor and
  346         Legislature by a specified date each year; requiring
  347         that the report contain certain information; requiring
  348         that the Revenue Estimating Conference use such
  349         information to determine the amount of sales taxes
  350         remitted in the previous calendar year by such out-of
  351         state dealers and estimate the amount that may be
  352         expected in the following fiscal year; requiring that
  353         the Legislature use the information to develop
  354         legislation designed to return the amount of sales
  355         taxes collected to the taxpayers of the state;
  356         providing an effective date.
  357