Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. SB 316
       
       
       
       
       
       
                                Barcode 444784                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  02/07/2013           .                                
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       The Committee on Commerce and Tourism (Detert) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 300 and 301
    4  insert:
    5         Section 3. Paragraphs (b), (d), and (h) of subsection (5)
    6  of section 212.08, Florida Statutes, are amended to read:
    7         212.08 Sales, rental, use, consumption, distribution, and
    8  storage tax; specified exemptions.—The sale at retail, the
    9  rental, the use, the consumption, the distribution, and the
   10  storage to be used or consumed in this state of the following
   11  are hereby specifically exempt from the tax imposed by this
   12  chapter.
   13         (5) EXEMPTIONS; ACCOUNT OF USE.—
   14         (b) Industrial machinery and equipment used by
   15  manufacturers or used exclusively in spaceport activities to
   16  increase productive output.—
   17         1. Industrial machinery and equipment purchased for
   18  exclusive use in businesses that manufacture, process, compound,
   19  or produce for sale items of tangible personal property at fixed
   20  locations or for exclusive use by a new business in spaceport
   21  activities as defined by s. 212.02 or for use in new businesses
   22  that manufacture, process, compound, or produce for sale items
   23  of tangible personal property at fixed locations are exempt from
   24  the tax imposed by this chapter if, at the time of purchase, the
   25  purchaser furnishes the seller with a signed certificate stating
   26  that the items to be exempted are for exclusive use as provided
   27  in this paragraph. The certificate relieves the seller of the
   28  responsibility of collecting the tax on the sale of such items
   29  and the department shall look solely to the purchaser for
   30  recovery of the tax if it determines that the purchaser was not
   31  entitled to the exemption upon an affirmative showing by the
   32  taxpayer to the satisfaction of the department that such items
   33  are used in a new business in this state. Such purchases must be
   34  made before the date the business first begins its productive
   35  operations, and delivery of the purchased item must be made
   36  within 12 months after that date.
   37         2. Industrial machinery and equipment purchased for
   38  exclusive use by an expanding facility which is engaged in
   39  spaceport activities as defined by s. 212.02 or for use in
   40  expanding manufacturing facilities or plant units which
   41  manufacture, process, compound, or produce for sale items of
   42  tangible personal property at fixed locations in this state are
   43  exempt from any amount of tax imposed by this chapter upon an
   44  affirmative showing by the taxpayer to the satisfaction of the
   45  department that such items are used to increase the productive
   46  output of such expanded facility or business by not less than 5
   47  percent.
   48         3.a. To receive an exemption provided by subparagraph 1. or
   49  subparagraph 2., a qualifying business entity shall apply to the
   50  department for a temporary tax exemption permit. The application
   51  shall state that a new business exemption or expanded business
   52  exemption is being sought. Upon a tentative affirmative
   53  determination by the department pursuant to subparagraph 1. or
   54  subparagraph 2., the department shall issue such permit.
   55         b. The applicant shall maintain all necessary books and
   56  records to support the exemption. Upon completion of purchases
   57  of qualified machinery and equipment pursuant to subparagraph 1.
   58  or subparagraph 2., the temporary tax permit shall be delivered
   59  to the department or returned to the department by certified or
   60  registered mail.
   61         c. If, in a subsequent audit conducted by the department,
   62  it is determined that the machinery and equipment purchased as
   63  exempt under subparagraph 1. or subparagraph 2. did not meet the
   64  criteria mandated by this paragraph or if commencement of
   65  production did not occur, the amount of taxes exempted at the
   66  time of purchase shall immediately be due and payable to the
   67  department by the business entity, together with the appropriate
   68  interest and penalty, computed from the date of purchase, in the
   69  manner prescribed by this chapter.
   70         d. If a qualifying business entity fails to apply for a
   71  temporary exemption permit or if the tentative determination by
   72  the department required to obtain a temporary exemption permit
   73  is negative, a qualifying business entity shall receive the
   74  exemption provided in subparagraph 1. or subparagraph 2. through
   75  a refund of previously paid taxes. No refund may be made for
   76  such taxes unless the criteria mandated by subparagraph 1. or
   77  subparagraph 2. have been met and commencement of production has
   78  occurred.
   79         4. The department shall adopt rules governing applications
   80  for, issuance of, and the form of temporary tax exemption
   81  permits; provisions for recapture of taxes; and the manner and
   82  form of refund applications, and may establish guidelines as to
   83  the requisites for an affirmative showing of increased
   84  productive output, commencement of production, and qualification
   85  for exemption.
   86         2.5. The exemption does exemptions provided in
   87  subparagraphs 1. and 2. do not apply to machinery or equipment
   88  purchased or used by electric utility companies, communications
   89  companies, oil or gas exploration or production operations,
   90  publishing firms that do not export at least 50 percent of their
   91  finished product out of the state, any firm subject to
   92  regulation by the Division of Hotels and Restaurants of the
   93  Department of Business and Professional Regulation, or any firm
   94  that does not manufacture, process, compound, or produce for
   95  sale items of tangible personal property or that does not use
   96  such machinery and equipment in spaceport activities as required
   97  by this paragraph. The exemption does apply exemptions provided
   98  in subparagraphs 1. and 2. shall apply to machinery and
   99  equipment purchased for use in phosphate or other solid minerals
  100  severance, mining, or processing operations.
  101         3.6. For the purposes of the exemption, the term exemptions
  102  provided in subparagraphs 1. and 2., these terms have the
  103  following meanings:
  104         a. “industrial machinery and equipment” means tangible
  105  personal property or other property that has a depreciable life
  106  of 3 years or more and that is used as an integral part in the
  107  manufacturing, processing, compounding, or production of
  108  tangible personal property for sale or is exclusively used in
  109  spaceport activities. A building and its structural components
  110  are not industrial machinery and equipment unless the building
  111  or structural component is so closely related to the industrial
  112  machinery and equipment that it houses or supports that the
  113  building or structural component can be expected to be replaced
  114  when the machinery and equipment are replaced. Heating and air
  115  conditioning systems are not industrial machinery and equipment
  116  unless the sole justification for their installation is to meet
  117  the requirements of the production process, even though the
  118  system may provide incidental comfort to employees or serve, to
  119  an insubstantial degree, nonproduction activities. The term
  120  includes parts and accessories for industrial machinery and
  121  equipment only to the extent that the exemption thereof is
  122  consistent with the provisions of this paragraph.
  123         b. “Productive output” means the number of units actually
  124  produced by a single plant, operation, or product line in a
  125  single continuous 12-month period, irrespective of sales.
  126  Increases in productive output shall be measured by the output
  127  for 12 continuous months selected by the expanding business
  128  after completion of the installation of such machinery or
  129  equipment over the output for the 12 continuous months
  130  immediately preceding such installation. However, in no case may
  131  such time period begin later than 2 years after completion of
  132  the installation of the new machinery and equipment. The units
  133  used to measure productive output shall be physically comparable
  134  between the two periods, irrespective of sales.
  135         (d) Machinery and equipment used under federal procurement
  136  contract.—
  137         1. Industrial machinery and equipment purchased by an
  138  expanding business that which manufactures tangible personal
  139  property pursuant to federal procurement regulations at fixed
  140  locations in this state are exempt from the tax imposed in this
  141  chapter upon an affirmative showing by the taxpayer to the
  142  satisfaction of the department that such items are used to
  143  increase the implicit productive output of the expanded business
  144  by not less than 10 percent. The percentage of increase is
  145  measured as deflated implicit productive output for the calendar
  146  year during which the installation of the machinery or equipment
  147  is completed or during which commencement of production
  148  utilizing such items is begun divided by the implicit productive
  149  output for the preceding calendar year. In no case may The
  150  commencement of production may not begin later than 2 years
  151  after completing following completion of installation of the
  152  machinery or equipment.
  153         2. The amount of the exemption allowed must shall equal the
  154  taxes otherwise imposed by this chapter on qualifying industrial
  155  machinery or equipment reduced by the percentage of gross
  156  receipts from cost-reimbursement type contracts attributable to
  157  the plant or operation to total gross receipts so attributable,
  158  accrued for the year of completion or commencement.
  159         3. The exemption provided by this paragraph shall inure to
  160  the taxpayer only through a refund of previously paid taxes.
  161  Such refund shall be made within 30 days after of formal
  162  approval by the department of the taxpayer’s application, which
  163  application may be made on an annual basis following
  164  installation of the machinery or equipment.
  165         4. For the purposes of this paragraph, the term:
  166         a. “Cost-reimbursement type contracts” has the same meaning
  167  as in 32 C.F.R. s. 3-405.
  168         b. “Deflated implicit productive output” means the product
  169  of implicit productive output times the quotient of the national
  170  defense implicit price deflator for the preceding calendar year
  171  divided by the deflator for the year of completion or
  172  commencement.
  173         c. “Eligible costs” means the total direct and indirect
  174  costs, as defined in 32 C.F.R. ss. 15-202 and 15-203, excluding
  175  general and administrative costs, selling expenses, and profit,
  176  defined by the uniform cost-accounting standards adopted by the
  177  Cost-Accounting Standards Board created pursuant to 50 U.S.C. s.
  178  2168.
  179         d. “Implicit productive output” means the annual eligible
  180  costs attributable to all contracts or subcontracts subject to
  181  federal procurement regulations of the single plant or operation
  182  at which the machinery or equipment is used.
  183         e. “Industrial machinery and equipment” means tangible
  184  personal property or other property that has a depreciable life
  185  of 3 years or more, that qualifies as an eligible cost under
  186  federal procurement regulations, and that is used as an integral
  187  part of the process of production of tangible personal property.
  188  A building and its structural components are not industrial
  189  machinery and equipment unless the building or structural
  190  component is so closely related to the industrial machinery and
  191  equipment that it houses or supports that the building or
  192  structural component can be expected to be replaced when the
  193  machinery and equipment are replaced. Heating and air
  194  conditioning systems are not industrial machinery and equipment
  195  unless the sole justification for their installation is to meet
  196  the requirements of the production process, even though the
  197  system may provide incidental comfort to employees or serve, to
  198  an insubstantial degree, nonproduction activities. The term
  199  includes parts and accessories only to the extent that the
  200  exemption of such parts and accessories is consistent with the
  201  provisions of this paragraph.
  202         f. “National defense implicit price deflator” means the
  203  national defense implicit price deflator for the gross national
  204  product as determined by the Bureau of Economic Analysis of the
  205  United States Department of Commerce.
  206         5. The exclusions provided in subparagraph (b)2. (b)5.
  207  apply to this exemption. This exemption applies only to
  208  machinery or equipment purchased pursuant to production
  209  contracts with the United States Department of Defense and Armed
  210  Forces, the National Aeronautics and Space Administration, and
  211  other federal agencies for which the contracts are classified
  212  for national security reasons. In no event shall The provisions
  213  of this paragraph do not apply to an any expanding business
  214  whose the increase in productive output is measurable of which
  215  could be measured under the provisions of sub-subparagraph
  216  (b)6.b. as physically comparable between the two periods. As
  217  used in this subparagraph, the term “productive output” means
  218  the number of units actually produced by a single plant,
  219  operation, or product line in a single continuous 12-month
  220  period, irrespective of sales. Increases in productive output
  221  shall be measured by dividing the output for 12 continuous
  222  months selected by the expanding business after completing the
  223  installation of machinery or equipment by the output for the 12
  224  continuous months immediately preceding such installation.
  225  However, such time period may not commence 2 years after
  226  completing the installation. The units used to measure
  227  productive output must be physically comparable between the two
  228  periods, irrespective of sales.
  229         (h) Business property used in an enterprise zone.—
  230         1. Business property purchased for use by businesses
  231  located in an enterprise zone which is subsequently used in an
  232  enterprise zone is shall be exempt from the tax imposed by this
  233  chapter. This exemption inures to the business only through a
  234  refund of previously paid taxes. A refund shall be authorized
  235  upon an affirmative showing by the taxpayer, to the satisfaction
  236  of the department, that the requirements of this paragraph have
  237  been met.
  238         2. To receive a refund, the business must file under oath
  239  with the governing body or enterprise zone development agency
  240  having jurisdiction over the enterprise zone where the business
  241  is located, as applicable, an application, under oath, which
  242  includes:
  243         a. The name and address of the business claiming the
  244  refund.
  245         b. The identifying number assigned pursuant to s. 290.0065
  246  to the enterprise zone in which the business is located.
  247         c. A specific description of the property for which a
  248  refund is sought, including its serial number or other permanent
  249  identification number.
  250         d. The location of the property.
  251         e. The sales invoice or other proof of purchase of the
  252  property, showing the amount of sales tax paid, the date of
  253  purchase, and the name and address of the sales tax dealer from
  254  whom the property was purchased.
  255         f. Whether the business is a small business as defined in
  256  by s. 288.703.
  257         g. If applicable, the name and address of each permanent
  258  employee of the business, including, for each employee who is a
  259  resident of an enterprise zone, the identifying number assigned
  260  pursuant to s. 290.0065 to the enterprise zone in which the
  261  employee resides.
  262         3. Within 10 working days after receipt of an application,
  263  the governing body or enterprise zone development agency shall
  264  review the application to determine if it contains all the
  265  information required pursuant to subparagraph 2. and meets the
  266  criteria set out in this paragraph. The governing body or agency
  267  shall certify all applications that contain the information
  268  required pursuant to subparagraph 2. and meet the criteria set
  269  out in this paragraph as eligible to receive a refund. If
  270  applicable, the governing body or agency shall also certify if
  271  20 percent of the employees of the business are residents of an
  272  enterprise zone, excluding temporary and part-time employees.
  273  The certification must shall be in writing, and a copy of the
  274  certification shall be transmitted to the executive director of
  275  the Department of Revenue. The business is shall be responsible
  276  for forwarding a certified application to the department within
  277  the time specified in subparagraph 4.
  278         4. An application for a refund pursuant to this paragraph
  279  must be submitted to the department within 6 months after the
  280  tax is due on the business property that is purchased.
  281         5. The amount refunded on purchases of business property
  282  under this paragraph shall be the lesser of 97 percent of the
  283  sales tax paid on such business property or $5,000, or, if up to
  284  no less than 20 percent of the employees of the business are
  285  residents of an enterprise zone, excluding temporary and part
  286  time employees, the amount refunded on purchases of business
  287  property under this paragraph shall be the lesser of 97 percent
  288  of the sales tax paid on such business property or $10,000. A
  289  refund must approved pursuant to this paragraph shall be made
  290  within 30 days after formal approval by the department of the
  291  application for the refund. A refund may not be granted under
  292  this paragraph unless the amount to be refunded exceeds $100 in
  293  sales tax paid on purchases made within a 60-day time period.
  294         6. The department shall adopt rules governing the manner
  295  and form of refund applications and may establish guidelines as
  296  to the requisites for an affirmative showing of qualification
  297  for exemption under this paragraph.
  298         7. If the department determines that the business property
  299  is used outside an enterprise zone within 3 years after from the
  300  date of purchase, the amount of taxes refunded to the business
  301  purchasing such business property is shall immediately be due
  302  and payable to the department by the business, together with the
  303  appropriate interest and penalty, computed from the date of
  304  purchase, in the manner provided by this chapter.
  305  Notwithstanding this subparagraph, business property used
  306  exclusively in:
  307         a. Licensed commercial fishing vessels,
  308         b. Fishing guide boats, or
  309         c. Ecotourism guide boats
  310  
  311         that leave and return to a fixed location within an area
  312  designated under s. 379.2353, Florida Statutes 2010, are
  313  eligible for the exemption provided under this paragraph if all
  314  requirements of this paragraph are met. Such vessels and boats
  315  must be owned by a business that is eligible to receive the
  316  exemption provided under this paragraph. This exemption does not
  317  apply to the purchase of a vessel or boat.
  318         8. The department shall deduct an amount equal to 10
  319  percent of each refund granted under this paragraph from the
  320  amount transferred into the Local Government Half-cent Sales Tax
  321  Clearing Trust Fund pursuant to s. 212.20 for the county area in
  322  which the business property is located and shall transfer that
  323  amount to the General Revenue Fund.
  324         9. For the purposes of this exemption, the term “business
  325  property” means new or used property defined as “recovery
  326  property” in s. 168(c) of the Internal Revenue Code of 1954, as
  327  amended, except:
  328         a. Property classified as 3-year property under s.
  329  168(c)(2)(A) of the Internal Revenue Code of 1954, as amended;
  330         b. Industrial machinery and equipment as defined in
  331  subparagraph (b)3. sub-subparagraph (b)6.a. and eligible for
  332  exemption under paragraph (b);
  333         c. Building materials as defined in sub-subparagraph
  334  (g)8.a.; and
  335         d. Business property having a sales price of under $5,000
  336  per unit.
  337         10. This paragraph expires on the date specified in s.
  338  290.016 for the expiration of the Florida Enterprise Zone Act.
  339         Section 4. (1) The Department of Revenue shall develop a
  340  tracking system, in consultation with the Revenue Estimating
  341  Conference, to determine the amount of sales taxes remitted by
  342  out–of-state dealers who would otherwise not be required to
  343  collect and remit sales taxes in the absence of the amendments
  344  made to s. 212.0596, Florida Statutes, in section 1 of this act.
  345  By February 1 of each year, the Department of Revenue shall
  346  submit a report to the Governor, the President of the Senate,
  347  and the Speaker of the House of Representatives which sets forth
  348  the amount of sales taxes collected and remitted by such dealers
  349  in the previous calendar year and the methodology used to
  350  determine the amount.
  351         (2) By March 1 of each year, the Revenue Estimating
  352  Conference shall use the information provided by the Department
  353  of Revenue pursuant to subsection (1) to determine the amount of
  354  sales taxes remitted in the previous calendar year by such out
  355  of-state dealers who would otherwise not be required to collect
  356  and remit sales taxes and estimate the amount that may be
  357  expected in the following fiscal year.
  358         (3) The Legislature shall use the information provided by
  359  the Department of Revenue and the Revenue Estimating Conference
  360  to develop legislation designed to return the amount of those
  361  sales taxes collected to the taxpayers of this state. The
  362  Legislature shall reduce taxes in an amount not less than the
  363  amount determined by the Revenue Estimating Conference. If the
  364  amount collected is determined to be of a recurring nature and
  365  sufficient to lower tax rates, the Legislature must first reduce
  366  the tax rate imposed on communications services under chapter
  367  202 or the tax rate imposed on commercial rentals under s.
  368  212.031, or may provide other permanent tax relief as it deems
  369  appropriate.
  370  
  371  ================= T I T L E  A M E N D M E N T ================
  372         And the title is amended as follows:
  373         Delete line 22
  374  and insert:
  375         “dealer”; amending s. 212.08, F.S.; revising the sales
  376         tax exemption from the sales tax for certain business
  377         purchases of industrial machinery and equipment and
  378         spaceport activities; deleting certain limitations on,
  379         and procedural requirements relating to, the
  380         exemption; conforming cross-references; requiring that
  381         the Department of Revenue develop a tracking system,
  382         in consultation with the Revenue Estimating
  383         Conference, to determine the amount of sales tax
  384         remitted by out-of-state dealers who would otherwise
  385         not be required to collect and remit sales taxes but
  386         for the amendments made by the act; requiring that the
  387         department submit a report to the Governor and
  388         Legislature by a specified date each year; requiring
  389         that the report contain certain information; requiring
  390         that the Revenue Estimating Conference use such
  391         information to determine the amount of sales taxes
  392         remitted in the previous calendar year by such out-of
  393         state dealers and estimate the amount that may be
  394         expected in the following fiscal year; requiring that
  395         the Legislature use the information to reduce tax
  396         rates for communications services under chapter 202,
  397         commercial services under s. 212.031, or other taxes
  398         as deemed appropriate; providing an effective date.
  399  
  400