2011 Florida Statutes
Procedure on purchaser’s request for refund or credit of communications services taxes.
Procedure on purchaser’s request for refund or credit of communications services taxes.
202.23 Procedure on purchaser’s request for refund or credit of communications services taxes.—
(1) Notwithstanding any other law, a purchaser seeking a refund of or credit for a tax collected by a dealer under this chapter must, within 3 years following collection of the tax from the purchaser, submit a written request for the refund or credit to the dealer in accordance with this section. A request shall not be granted unless the amount claimed was collected from the purchaser and was not due to the state or to any local taxing jurisdiction.
(a) A request for a refund or credit may be submitted under this section if:
1. The dealer charged and collected the tax with respect to a transaction or charge that was not subject to the communications services taxes imposed by this chapter or chapter 203, or applied a tax rate in excess of the lawful rate.
2. The purchaser or the transaction was exempt or immune from such taxes.
3. The purchaser was assigned to the incorrect local taxing jurisdiction for purposes of the taxes authorized in s. 202.19.
4. The purchaser paid the tax in error.
(b) A purchaser’s request for a refund or credit must be signed by the purchaser and is complete for purposes of this section and the limitation period if it states the purchaser’s name, mailing address, account number, the tax amounts claimed, the specific months during which those amounts were collected, and the reason for the purchaser’s claim that such amounts were not due to the state or to any local taxing jurisdiction. If the reason for the request is an exemption or immunity or a claim that the purchaser was assigned to the incorrect local taxing jurisdiction for purposes of a tax imposed under s. 202.19, a completed request must also include any additional information the department prescribes by rule to facilitate verification of the purchaser’s eligibility for exemption or immunity or to facilitate verification of the purchaser’s service address. Upon receipt of a completed request, the dealer shall ascertain whether it collected the tax claimed from the purchaser and whether the request is timely.
(c) Within 30 days following receipt of a completed request, the dealer shall determine whether any portion of the tax was collected solely as the result of an error of the dealer or the purchaser or solely as the result of a combination of errors of the dealer and the purchaser. The dealer shall refund any such amount or credit the purchaser’s account for such amount within 45 days following such determination.
(d) With respect to all amounts timely claimed which the dealer collected from the purchaser and which the dealer has not determined to be subject to refund or credit pursuant to paragraph (c), the dealer shall, within 30 days following receipt of the purchaser’s completed request for refund or credit, provide a copy of the request to the department. If the reason for the purchaser’s request is described in subparagraph (a)1. or subparagraph (a)3., the dealer shall contemporaneously furnish to the department an identification of the charges included in the taxable measure and the tax rates applied to the charges, or a written identification of each local jurisdiction to which the purchaser was assigned and the amounts collected from the purchaser and reported for each such jurisdiction, as the case may be. If a purchaser’s request submitted to the department under this section sets forth another reason for claiming a refund or credit, the dealer shall furnish to the department information to facilitate the department’s evaluation of the request.
(e) Within 90 days following receipt of the purchaser’s request from the dealer, the department shall determine whether the tax was correctly applied and notify the dealer in writing of its determination. If the department determines that the tax was incorrectly applied, its notification to the dealer must inform the dealer how the tax should have been applied, including, in the case of an incorrect assignment of the purchaser to a local taxing jurisdiction, an identification of the correct local taxing jurisdiction and the applicable rates of tax levied by the local jurisdiction. The department’s notification must also inform the dealer of any portion of the amount claimed which was not due to the state or to any local taxing jurisdiction and approve the refund or credit of such amount to the purchaser. Within 45 days following receipt of notification from the department, the dealer shall issue a refund or credit the purchaser’s account for any such amount. The dealer’s obligation to issue a refund or credit the purchaser’s account is limited to amounts approved in accordance with this section.
(f) The dealer shall issue a written response advising the purchaser of the disposition of the purchaser’s request. The response must specify any portion of the tax claimed which is being refunded or credited to the purchaser’s account and the reason for denial of any portion of the request. The request may be denied if the request was untimely or incomplete, the dealer did not collect the tax claimed, the purchaser previously received a refund of or credit for the same tax, the tax collected was due, or the department failed to furnish the notification required by paragraph (e). With respect to any portion of the request which is granted, the response must be issued at the time of the refund or credit to the purchaser’s account. With respect to any portion of the request which is denied, the response must be issued within 45 days following the dealer’s receipt of the request if the request was not submitted to the department pursuant to paragraph (d), within 45 days following the dealer’s receipt of the department’s notification pursuant to paragraph (e) if the denial is based on the department’s notification, or within 135 days following submission of the request to the department if the dealer has not received the department’s notification.
(g) The dealer may deduct from any refund or credit under this section any amount owed by the purchaser to the dealer which is delinquent.
(2) This section provides the sole and exclusive procedure and remedy for a purchaser who claims that a dealer has collected communications services taxes imposed or administered under this chapter which were not due. An action that arises as a result of the claimed collection of taxes that were not due may not be commenced or maintained by or on behalf of a purchaser against a dealer, a municipality, a county, or the state unless the purchaser pleads and proves that the purchaser has exhausted the procedures in subsection (1) and that the defendant has failed to comply with subsection (1). However, no determination by a dealer under paragraph (1)(c) shall be deemed a failure to comply with subsection (1) if the dealer has complied with the obligations imposed on the dealer by paragraphs (1)(d), (e), and (f). In any such action, it is a complete defense that the dealer, a municipality, a county, or the state has refunded the taxes claimed or credited the purchaser’s account. In such an action against a dealer, it is also a complete defense that, in collecting the tax, the dealer used one or more of the methods set forth in s. 202.22 for assigning the purchaser to a local taxing jurisdiction. Such action is barred unless it is commenced within 180 days following the date of the dealer’s written response under paragraph (1)(f), or within 1 year following submission of the purchaser’s request to the dealer if the dealer failed to issue a timely written response. The relief available to a purchaser as a result of collection of communications services taxes that were not due is limited to a refund of or credit for such taxes.
(3) A dealer who remitted a tax amount to the department for which the dealer subsequently issued a refund or credit to the purchaser pursuant to this section, and a dealer who has otherwise remitted to the department a tax amount with respect to communications services which was not due under this chapter or chapter 203, is entitled to a refund or credit of such amount from the department. The dealer may apply for a refund within the period prescribed in s. 215.26, or may take a credit against a tax remittance otherwise required under this chapter within 3 years after the date that the amount for which credit is claimed was remitted to the department, or within 60 days following such provider’s issuance of a refund or credit to the purchaser for such amount, whichever occurs later. In addition, s. 213.34 applies to the offset of overpayments against deficiencies in audits of dealers and purchasers.
(4) A dealer who takes a credit on a subsequent return, as provided in subsection (3), for a tax imposed pursuant to s. 202.19 which has been collected and remitted by the dealer must indicate such credit in the portion of the return applicable to the local taxing jurisdiction for which the tax was originally reported.
(5) A dealer who has collected and remitted amounts that were not due, as determined by the department under paragraph (1)(e), who has issued a refund or credit to the purchaser for such amounts, and who takes a credit or receives a refund from the department for such amounts as provided in subsection (3) is not subject to assessment for any of the tax that was refunded or credited or for any interest or penalty with respect to the tax. In addition, a dealer who modifies his or her tax compliance practices to conform to a department determination under paragraph (1)(e) is not subject to assessment as a result of such modification, absent a subsequent change in law or update to a database pursuant to s. 202.22.
(6) A purchaser who seeks a refund of communications services taxes that the purchaser paid directly to the department must apply to the department for such refund in accordance with s. 215.26 and may not apply to the dealer.
(7) The rights to a refund or credit provided in this section for purchasers and dealers may be assigned.
(8)(a) Subject to the provisions of s. 213.756, if it appears, upon examination of a communications services tax return made under this chapter, or upon proof submitted to the department by the dealer, that an amount of communications services tax has been paid in excess of the amount due, the department may refund the amount of the overpayment to the dealer. The department may refund the overpayment without regard to whether the dealer has filed a written claim for refund; however, the department may require the dealer to file a statement affirming that the dealer made the overpayment. Prior to issuing a refund pursuant to this subsection, the department shall notify the dealer of its intent to issue such refund, the amount of such refund, and the reason for such refund.
(b) Notwithstanding the provisions of paragraph (a), a refund of communications services tax shall not be made, and no action for a refund may be brought by a dealer or other person, after the applicable period set forth in s. 215.26(2) has elapsed.
(c) If, after the issuance of a refund by the department pursuant to this subsection, the department determines that the amount of such refund exceeds the amount legally due to the dealer, the provisions of s. 202.35 concerning penalties and interest shall not apply if, within 60 days of receiving notice of such determination, the dealer reimburses the department the amount of such excess.
History.—ss. 15, 58, ch. 2000-260; ss. 16, 38, ch. 2001-140.