Florida Senate - 2012                                    SB 1572
       
       
       
       By Senator Smith
       
       
       
       
       29-01363-12                                           20121572__
    1                        A bill to be entitled                      
    2         An act relating to businesses located in enterprise
    3         zones; amending s. 212.08, F.S.; clarifying that the
    4         tax exemption for business property purchased for use
    5         by businesses located in an enterprise zone applies to
    6         the use tax and not just the sales tax; specifying
    7         that the monetary caps applicable to the sales and use
    8         tax exemption for such business property are
    9         calculated on a per item basis; deleting a provision
   10         limiting sales and use tax refunds for such business
   11         property to amounts in excess of $100 on purchases
   12         made within a specified time period; amending s.
   13         212.096, F.S.; revising the definitions of the terms
   14         “eligible business,” “job,” and “new job has been
   15         created” for purposes relating to application of the
   16         enterprise zone jobs credit against the sales tax;
   17         revising requirements applicable to the making of
   18         sworn statements and the filing of applications
   19         claiming the enterprise zone jobs credit against the
   20         sales tax; authorizing an eligible business that files
   21         a consolidated tax return to take the enterprise zone
   22         jobs credit against such business’s consolidated tax
   23         liability; providing an effective date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Paragraph (h) of subsection (5) 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         (5) EXEMPTIONS; ACCOUNT OF USE.—
   36         (h) Business property used in an enterprise zone.—
   37         1. Business property purchased for use by businesses
   38  located in an enterprise zone which is subsequently used in an
   39  enterprise zone is shall be exempt from the tax imposed by this
   40  chapter. This exemption inures to the business only through a
   41  refund of previously paid taxes. A refund shall be authorized
   42  upon an affirmative showing by the taxpayer to the satisfaction
   43  of the department that the requirements of this paragraph have
   44  been met.
   45         2. To receive a refund, the business must file under oath
   46  with the governing body or enterprise zone development agency
   47  having jurisdiction over the enterprise zone where the business
   48  is located, as applicable, an application which includes:
   49         a. The name and address of the business claiming the
   50  refund.
   51         b. The identifying number assigned pursuant to s. 290.0065
   52  to the enterprise zone in which the business is located.
   53         c. A specific description of the property for which a
   54  refund is sought, including its serial number or other permanent
   55  identification number.
   56         d. The location of the property.
   57         e. The sales invoice or other proof of purchase of the
   58  property, showing the amount of sales or use tax paid, the date
   59  of purchase, and the name and address of the sales tax dealer
   60  from whom the property was purchased.
   61         f. Whether the business is a small business as defined by
   62  s. 288.703.
   63         g. If applicable, the name and address of each permanent
   64  employee of the business, including, for each employee who is a
   65  resident of an enterprise zone, the identifying number assigned
   66  pursuant to s. 290.0065 to the enterprise zone in which the
   67  employee resides.
   68         3. Within 10 working days after receipt of an application,
   69  the governing body or enterprise zone development agency shall
   70  review the application to determine if it contains all the
   71  information required pursuant to subparagraph 2. and meets the
   72  criteria set out in this paragraph. The governing body or agency
   73  shall certify all applications that contain the information
   74  required pursuant to subparagraph 2. and meet the criteria set
   75  out in this paragraph as eligible to receive a refund. If
   76  applicable, the governing body or agency shall also certify if
   77  20 percent of the employees of the business are residents of an
   78  enterprise zone, excluding temporary and part-time employees.
   79  The certification shall be in writing, and a copy of the
   80  certification shall be transmitted to the executive director of
   81  the Department of Revenue. The business is shall be responsible
   82  for forwarding a certified application to the department within
   83  the time specified in subparagraph 4.
   84         4. An application for a refund pursuant to this paragraph
   85  must be submitted to the department within 6 months after the
   86  tax is due on the business property that is purchased.
   87         5. The amount refunded on purchases of business property
   88  under this paragraph shall be the lesser of 97 percent of the
   89  sales or use tax paid on such business property or $5,000 per
   90  item of business property purchased, or, if no less than 20
   91  percent of the employees of the business are residents of an
   92  enterprise zone, excluding temporary and part-time employees,
   93  the amount refunded on purchases of business property under this
   94  paragraph shall be the lesser of 97 percent of the sales tax
   95  paid on such business property or $10,000 per item of business
   96  property purchased. A refund approved pursuant to this paragraph
   97  shall be made within 30 days after formal approval by the
   98  department of the application for the refund. A refund may not
   99  be granted under this paragraph unless the amount to be refunded
  100  exceeds $100 in sales tax paid on purchases made within a 60-day
  101  time period.
  102         6. The department shall adopt rules governing the manner
  103  and form of refund applications and may establish guidelines as
  104  to the requisites for an affirmative showing of qualification
  105  for exemption under this paragraph.
  106         7. If the department determines that the business property
  107  is used outside an enterprise zone within 3 years from the date
  108  of purchase, the amount of taxes refunded to the business
  109  purchasing such business property shall immediately be due and
  110  payable to the department by the business, together with the
  111  appropriate interest and penalty, computed from the date of
  112  purchase, in the manner provided by this chapter.
  113  Notwithstanding this subparagraph, business property used
  114  exclusively in:
  115         a. Licensed commercial fishing vessels,
  116         b. Fishing guide boats, or
  117         c. Ecotourism guide boats
  118  
  119  that leave and return to a fixed location within an area
  120  designated under s. 379.2353, Florida Statutes 2010, are
  121  eligible for the exemption provided under this paragraph if all
  122  requirements of this paragraph are met. Such vessels and boats
  123  must be owned by a business that is eligible to receive the
  124  exemption provided under this paragraph. This exemption does not
  125  apply to the purchase of a vessel or boat.
  126         8. The department shall deduct an amount equal to 10
  127  percent of each refund granted under this paragraph from the
  128  amount transferred into the Local Government Half-cent Sales Tax
  129  Clearing Trust Fund pursuant to s. 212.20 for the county area in
  130  which the business property is located and shall transfer that
  131  amount to the General Revenue Fund.
  132         9. For the purposes of this exemption, “business property”
  133  means new or used property defined as “recovery property” in s.
  134  168(c) of the Internal Revenue Code of 1954, as amended, except:
  135         a. Property classified as 3-year property under s.
  136  168(c)(2)(A) of the Internal Revenue Code of 1954, as amended;
  137         b. Industrial machinery and equipment as defined in sub
  138  subparagraph (b)6.a. and eligible for exemption under paragraph
  139  (b);
  140         c. Building materials as defined in sub-subparagraph
  141  (g)8.a.; and
  142         d. Business property having a sales price of under $5,000
  143  per purchase unit.
  144         10. This paragraph expires on the date specified in s.
  145  290.016 for the expiration of the Florida Enterprise Zone Act.
  146         Section 2. Section 212.096, Florida Statutes, is amended to
  147  read:
  148         212.096 Sales, rental, storage, use tax; enterprise zone
  149  jobs credit against sales tax.—
  150         (1) For the purposes of the credit provided in this
  151  section:
  152         (a) “Eligible business” means a location of any sole
  153  proprietorship, firm, partnership, corporation, bank, savings
  154  association, estate, trust, business trust, receiver, syndicate,
  155  or other group or combination, or successor business, located in
  156  an enterprise zone. The eligible business must demonstrate to
  157  the department that, on the date of application, the total
  158  number of full-time jobs defined under paragraph (d) is greater
  159  at the location stated in the application than the total was 12
  160  months prior to that date. An eligible business does not include
  161  any business that which has claimed the credit permitted under
  162  s. 220.181 for any new business employee first beginning
  163  employment with the business after July 1, 1995.
  164         (b) “Month” means either a calendar month or the time
  165  period from any day of any month to the corresponding day of the
  166  next succeeding month or, if there is no corresponding day in
  167  the next succeeding month, the last day of the succeeding month.
  168         (c) “New employee” means a person residing in an enterprise
  169  zone or a participant in the welfare transition program who
  170  begins employment with an eligible business after July 1, 1995,
  171  and who has not been previously employed full time within the
  172  preceding 12 months by the eligible business, or a successor
  173  eligible business, claiming the credit allowed by this section.
  174         (d) “Job” means a full-time position, as consistent with
  175  terms used by the Agency for Workforce Innovation and the United
  176  States Department of Labor for purposes of unemployment
  177  compensation tax administration and employment estimation
  178  resulting directly from a business operation in this state. This
  179  term may not include a temporary construction job involved with
  180  the construction of facilities or any job that has previously
  181  been included in any application for tax credits under s.
  182  220.181(1). The term also includes employment of an employee:
  183         1. Leased from an employee leasing company licensed under
  184  chapter 468 if such employee has been continuously leased to the
  185  employer for an average of at least 36 hours per week for more
  186  than 6 months.
  187         2. Paid through a subsidiary or affiliate management
  188  company if the payroll expense is ultimately borne by the
  189  eligible business.
  190         (e) “New job has been created” means that, on the date of
  191  application, the total number of full-time jobs is greater at
  192  the location stated in the application than the total was 12
  193  months prior to that date, as demonstrated to the department by
  194  a business located in the enterprise zone.
  195  
  196  A person shall be deemed to be employed if the person performs
  197  duties in connection with the operations of the eligible
  198  business on a regular, full-time basis, provided the person is
  199  performing such duties for an average of at least 36 hours per
  200  week each month. The person must be performing such duties at an
  201  eligible a business site located in the enterprise zone.
  202         (2)(a) Upon an affirmative showing by an eligible business
  203  to the satisfaction of the department that the requirements of
  204  this section have been met, the eligible business shall be
  205  allowed a credit against the tax remitted under this chapter.
  206         (b) The credit shall be computed as 20 percent of the
  207  actual monthly wages paid in this state to each new employee
  208  hired when a new job has been created, unless the eligible
  209  business is located within a rural enterprise zone pursuant to
  210  s. 290.004, in which case the credit shall be 30 percent of the
  211  actual monthly wages paid. If no less than 20 percent of the
  212  employees of the eligible business are residents of an
  213  enterprise zone, excluding temporary and part-time employees,
  214  the credit shall be computed as 30 percent of the actual monthly
  215  wages paid in this state to each new employee hired when a new
  216  job has been created, unless the eligible business is located
  217  within a rural enterprise zone, in which case the credit shall
  218  be 45 percent of the actual monthly wages paid. If the new
  219  employee hired when a new job is created is a participant in the
  220  welfare transition program, the following credit shall be a
  221  percent of the actual monthly wages paid: 40 percent for $4
  222  above the hourly federal minimum wage rate; 41 percent for $5
  223  above the hourly federal minimum wage rate; 42 percent for $6
  224  above the hourly federal minimum wage rate; 43 percent for $7
  225  above the hourly federal minimum wage rate; and 44 percent for
  226  $8 above the hourly federal minimum wage rate. For purposes of
  227  this paragraph, monthly wages shall be computed as one-twelfth
  228  of the expected annual wages paid to such employee. The amount
  229  paid as wages to a new employee is the compensation paid to such
  230  employee that is subject to unemployment tax. The credit shall
  231  be allowed for up to 24 consecutive months, beginning with the
  232  first tax return due pursuant to s. 212.11 after approval by the
  233  department.
  234         (3) In order to claim this credit, an eligible business
  235  must file under oath with the governing body or enterprise zone
  236  development agency having jurisdiction over the enterprise zone
  237  where the eligible business is located, as applicable, a
  238  statement that which includes:
  239         (a) For each new employee for whom this credit is claimed,
  240  the employee’s name and place of residence, including the
  241  identifying number assigned pursuant to s. 290.0065 to the
  242  enterprise zone in which the employee resides if the new
  243  employee is a person residing in an enterprise zone, and, if
  244  applicable, documentation that the employee is a welfare
  245  transition program participant.
  246         (b) If applicable, the name and address of each permanent
  247  employee of the business, including, for each employee who is a
  248  resident of an enterprise zone, the identifying number assigned
  249  pursuant to s. 290.0065 to the enterprise zone in which the
  250  employee resides.
  251         (c) The name and address of the eligible business.
  252         (d) The starting salary or hourly wages paid to the new
  253  employee.
  254         (e) Demonstration to the department that, on the date of
  255  application, the total number of full-time jobs defined under
  256  paragraph (1)(d) is greater at the location stated in the
  257  application than the total was 12 months prior to that date.
  258         (f) The identifying number assigned pursuant to s. 290.0065
  259  to the enterprise zone in which the eligible business is
  260  located.
  261         (g) Whether the eligible business is a small business as
  262  defined by s. 288.703(1).
  263         (4)(h) Within 10 working days after receipt of an
  264  application, the governing body or enterprise zone development
  265  agency shall review the application to determine if it contains
  266  all the information required pursuant to this subsection (3) and
  267  meets the criteria set out in this section. The governing body
  268  or agency shall certify all applications that contain the
  269  information required pursuant to this subsection (3) and meet
  270  the criteria set out in this section as eligible to receive a
  271  credit. If applicable, the governing body or agency shall also
  272  certify if 20 percent of the employees of the eligible business
  273  are residents of an enterprise zone, excluding temporary and
  274  part-time employees. The certification shall be in writing, and
  275  a copy of the certification shall be transmitted to the
  276  executive director of the Department of Revenue. The eligible
  277  business is shall be responsible for forwarding a certified
  278  application to the department within the time specified in
  279  subsection (5) paragraph (i).
  280         (5)(i) All applications for a credit pursuant to this
  281  section must be submitted to the department within 6 months
  282  after the new employee begins employment at the eligible
  283  business is hired, except applications for credit for leased
  284  employees. Applications for credit for leased employees must be
  285  submitted to the department within 7 months after the employee
  286  is leased and begins employment at the eligible business.
  287         (6)(4) Within 10 working days after receipt of a completed
  288  application for a credit authorized in this section, the
  289  department shall inform the eligible business that the
  290  application has been approved. The credit may be taken on the
  291  first return due after receipt of approval from the department.
  292         (7)(5)If In the event the application is incomplete or
  293  insufficient to support the credit authorized in this section,
  294  the department shall deny the credit and notify the eligible
  295  business of that fact. The eligible business may reapply for
  296  this credit.
  297         (8)(6) The credit provided in this section does not apply:
  298         (a) For any new employee who is an owner, partner, or
  299  majority stockholder of an eligible business.
  300         (b) For any new employee who is employed for any period
  301  less than 3 months.
  302         (9)(7) The credit provided in this section is shall not be
  303  allowed for any month in which the tax due for such period or
  304  the tax return required pursuant to s. 212.11 for such period is
  305  delinquent.
  306         (10)(8)If In the event an eligible business has a credit
  307  larger than the amount owed the state on the tax return for the
  308  time period in which the credit is claimed, the amount of the
  309  credit for that time period shall be the amount owed the state
  310  on that tax return. If an eligible business files consolidated
  311  tax returns, the credit may be taken against its consolidated
  312  tax liability.
  313         (11)(9) Any eligible business that which has claimed this
  314  credit is shall not be allowed any credit under the provisions
  315  of s. 220.181 for any new employee beginning employment after
  316  July 1, 1995.
  317         (12)(10) It is shall be the responsibility of each eligible
  318  business to affirmatively demonstrate to the satisfaction of the
  319  department that it meets the requirements of this section.
  320         (13)(11) Any person who fraudulently claims this credit is
  321  liable for repayment of the credit, plus a mandatory penalty of
  322  100 percent of the credit plus interest at the rate provided in
  323  this chapter, and commits such person is guilty of a misdemeanor
  324  of the second degree, punishable as provided in s. 775.082 or s.
  325  775.083.
  326         (14)(12) This section, except for subsection (13) (11),
  327  expires on the date specified in s. 290.016 for the expiration
  328  of the Florida Enterprise Zone Act.
  329         Section 3. This act shall take effect July 1, 2012.