Senate Bill 0770c1

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    Florida Senate - 1999                            CS for SB 770

    By the Committee on Fiscal Resource and Senators Horne,
    Dawson-White, Gutman, Diaz-Balart, Forman, Holzendorf,
    Kirkpatrick, Childers, Casas, Bronson, Rossin, Meek, Myers,
    Silver, Webster, King and Campbell


    314-2150-99

  1                      A bill to be entitled

  2         An act relating to tax on sales, use, and other

  3         transactions; amending s. 212.031, F.S.;

  4         providing that the tax on the lease or rental

  5         of a license in real property does not apply

  6         when the property is a public or private street

  7         or right-of-way used by a utility or franchised

  8         cable television company for utility,

  9         television, or communication purposes;

10         providing a definition for the term "utility";

11         amending s. 212.05, F.S.; reducing the rate of

12         the tax on charges for telecommunication

13         service from 7 percent to 6.5 percent;

14         providing for application of such tax;

15         providing legislative intent to further reduce

16         the rate in a subsequent year; providing that

17         the sales tax on prepaid calling cards will be

18         assessed at the point of sale of the card;

19         amending s. 212.12, F.S., to conform; providing

20         for the change in the tax rate to be applied to

21         monthly charges; providing an effective date.

22

23  Be It Enacted by the Legislature of the State of Florida:

24

25         Section 1.  Paragraph (a) of subsection (1) of section

26  212.031, Florida Statutes, 1998 Supplement, is amended to

27  read:

28         212.031  Lease or rental of or license in real

29  property.--

30         (1)(a)  It is declared to be the legislative intent

31  that every person is exercising a taxable privilege who

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    Florida Senate - 1999                            CS for SB 770
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  1  engages in the business of renting, leasing, letting, or

  2  granting a license for the use of any real property unless

  3  such property is:

  4         1.  Assessed as agricultural property under s. 193.461.

  5         2.  Used exclusively as dwelling units.

  6         3.  Property subject to tax on parking, docking, or

  7  storage spaces under s. 212.03(6).

  8         4.  Recreational property or the common elements of a

  9  condominium when subject to a lease between the developer or

10  owner thereof and the condominium association in its own right

11  or as agent for the owners of individual condominium units or

12  the owners of individual condominium units. However, only the

13  lease payments on such property shall be exempt from the tax

14  imposed by this chapter, and any other use made by the owner

15  or the condominium association shall be fully taxable under

16  this chapter.

17         5.  A public or private street or right-of-way and

18  poles, conduits, fixtures, and similar improvements located on

19  such streets or rights-of-way, occupied or used by a utility

20  or franchised cable television company for utility or

21  communications or television purposes. For purposes of this

22  subparagraph, the term "utility" means any person providing

23  utility services as defined in s. 203.012. This exception also

24  applied to property, excluding buildings, wherever located, on

25  which antennas, cables, adjacent accessory structures, or

26  adjacent accessory equipment used in the provision of

27  cellular, enhanced specialized mobile radio, or personal

28  communications services are placed.

29         6.  A public street or road which is used for

30  transportation purposes.

31

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    Florida Senate - 1999                            CS for SB 770
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  1         7.  Property used at an airport exclusively for the

  2  purpose of aircraft landing or aircraft taxiing or property

  3  used by an airline for the purpose of loading or unloading

  4  passengers or property onto or from aircraft or for fueling

  5  aircraft.

  6         8.a.  Property used at a port authority, as defined in

  7  s. 315.02(2), exclusively for the purpose of oceangoing

  8  vessels or tugs docking, or such vessels mooring on property

  9  used by a port authority for the purpose of loading or

10  unloading passengers or cargo onto or from such a vessel, or

11  property used at a port authority for fueling such vessels, or

12  to the extent that the amount paid for the use of any property

13  at the port is based on the charge for the amount of tonnage

14  actually imported or exported through the port by a tenant.

15         b.  The amount charged for the use of any property at

16  the port in excess of the amount charged for tonnage actually

17  imported or exported shall remain subject to tax except as

18  provided in sub-subparagraph a.

19         9.  Property used as an integral part of the

20  performance of qualified production services.  As used in this

21  subparagraph, the term "qualified production services" means

22  any activity or service performed directly in connection with

23  the production of a qualified motion picture, as defined in s.

24  212.06(1)(b), and includes:

25         a.  Photography, sound and recording, casting, location

26  managing and scouting, shooting, creation of special and

27  optical effects, animation, adaptation (language, media,

28  electronic, or otherwise), technological modifications,

29  computer graphics, set and stage support (such as

30  electricians, lighting designers and operators, greensmen,

31  prop managers and assistants, and grips), wardrobe (design,

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    Florida Senate - 1999                            CS for SB 770
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  1  preparation, and management), hair and makeup (design,

  2  production, and application), performing (such as acting,

  3  dancing, and playing), designing and executing stunts,

  4  coaching, consulting, writing, scoring, composing,

  5  choreographing, script supervising, directing, producing,

  6  transmitting dailies, dubbing, mixing, editing, cutting,

  7  looping, printing, processing, duplicating, storing, and

  8  distributing;

  9         b.  The design, planning, engineering, construction,

10  alteration, repair, and maintenance of real or personal

11  property including stages, sets, props, models, paintings, and

12  facilities principally required for the performance of those

13  services listed in sub-subparagraph a.; and

14         c.  Property management services directly related to

15  property used in connection with the services described in

16  sub-subparagraphs a. and b.

17         10.  Leased, subleased, or rented to a person providing

18  food and drink concessionaire services within the premises of

19  a movie theater, a business operated under a permit issued

20  pursuant to chapter 550, or any publicly owned arena, sports

21  stadium, convention hall, exhibition hall, auditorium, or

22  recreational facility.  A person providing retail

23  concessionaire services involving the sale of food and drink

24  or other tangible personal property within the premises of an

25  airport shall be subject to tax on the rental of real property

26  used for that purpose, but shall not be subject to the tax on

27  any license to use the property.  For purposes of this

28  subparagraph, the term "sale" shall not include the leasing of

29  tangible personal property.

30         11.  Property occupied pursuant to an instrument

31  calling for payments which the department has declared, in a

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    Florida Senate - 1999                            CS for SB 770
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  1  Technical Assistance Advisement issued on or before March 15,

  2  1993, to be nontaxable pursuant to rule 12A-1.070(19)(c),

  3  Florida Administrative Code; provided that this subparagraph

  4  shall only apply to property occupied by the same person

  5  before and after the execution of the subject instrument and

  6  only to those payments made pursuant to such instrument,

  7  exclusive of renewals and extensions thereof occurring after

  8  March 15, 1993.

  9         Section 2.  Paragraph (e) of subsection (1) of section

10  212.05, Florida Statutes, 1998 Supplement, is amended to read:

11         212.05  Sales, storage, use tax.--It is hereby declared

12  to be the legislative intent that every person is exercising a

13  taxable privilege who engages in the business of selling

14  tangible personal property at retail in this state, including

15  the business of making mail order sales, or who rents or

16  furnishes any of the things or services taxable under this

17  chapter, or who stores for use or consumption in this state

18  any item or article of tangible personal property as defined

19  herein and who leases or rents such property within the state.

20         (1)  For the exercise of such privilege, a tax is

21  levied on each taxable transaction or incident, which tax is

22  due and payable as follows:

23         (e)1.  Effective January 1, 2000, at the rate of 6.5 6

24  percent on the total charge charges for:

25         a.  All telegraph messages and long-distance telephone

26  calls beginning and terminating in this state,

27  telecommunication service as defined in s. 203.012, and those

28  services described in s. 203.012(2)(a). The tax shall be

29  applied to the total charge for each message, call, or other

30  segment or component of telecommunication service for which a

31  customer is charged. It is the intent of the Legislature that,

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    Florida Senate - 1999                            CS for SB 770
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  1  pursuant to future legislative action, the rate at which

  2  telecommunication service as defined in s. 203.012 and those

  3  services described in s. 203.012(2)(a) are taxed be reduced to

  4  6 percent on January 1, 2001, except that the tax rate for

  5  charges for telecommunication service is 7 percent. The tax on

  6  calls made with a prepaid telephone calling card shall be

  7  collected at the time of sale and remitted by the dealer

  8  selling or recharging a prepaid telephone card.

  9         a.  A prepaid telephone card or authorization number

10  means the right to exclusively make telephone calls that must

11  be paid for in advance and that enable the origination of

12  calls using an access number, prepaid mobile account, or

13  authorization code, whether manually or electronically dialed.

14         b.  If the sale or recharge of the prepaid telephone

15  calling card does not take place at the dealer's place of

16  business, it shall be deemed to take place at the customer's

17  shipping address or, if no item is shipped, at the customer's

18  address or the location associated with the customer's mobile

19  telephone number.

20         c.  The prepaid phone card constitutes property in this

21  state and subjects the selling dealer to the jurisdiction of

22  this state for purposes of this subsection.

23         2.  At the rate of 7 percent on the total charge for

24  electrical power or energy.

25         3.  At the rate of 6 percent on charges for:

26         a.b.  Any television system program service.

27         b.c.  The installation of telecommunication and

28  telegraphic equipment.

29         d.  Electrical power or energy, except that the tax

30  rate for charges for electrical power or energy is 7 percent.

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    Florida Senate - 1999                            CS for SB 770
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  1         4.2.  For purposes of this chapter, "television system

  2  program service" means the transmitting, by any means, of any

  3  audio or video signal to a subscriber for other than

  4  retransmission, or the installing, connecting, reconnecting,

  5  disconnecting, moving, or changing of any equipment related to

  6  such service.  For purposes of this chapter, the term

  7  "telecommunication service" does not include local service

  8  provided through a pay telephone. The provisions of s.

  9  212.17(3), regarding credit for tax paid on charges

10  subsequently found to be worthless, shall be equally

11  applicable to any tax paid under the provisions of this

12  section on charges for telecommunication or telegraph services

13  or electric power subsequently found to be uncollectible. The

14  word "charges" in this paragraph does not include any excise

15  or similar tax levied by the Federal Government, any political

16  subdivision of the state, or any municipality upon the

17  purchase or sale of telecommunication, television system

18  program, or telegraph service or electric power, which tax is

19  collected by the seller from the purchaser.

20         5.3.  Telegraph messages and telecommunication services

21  which originate or terminate in this state, other than

22  interstate private communication services, and are billed to a

23  customer, telephone number, or device located within this

24  state are taxable under this paragraph.  Interstate private

25  communication services are taxable under this paragraph as

26  follows:

27         a.  One hundred percent of the charge imposed at each

28  channel termination point within this state;

29         b.  One hundred percent of the charge imposed for the

30  total channel mileage between each channel termination point

31  within this state; and

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    Florida Senate - 1999                            CS for SB 770
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  1         c.  The portion of the interstate interoffice channel

  2  mileage charge as determined by multiplying said charge times

  3  a fraction, the numerator of which is the air miles between

  4  the last channel termination point in this state and the

  5  vertical and horizontal coordinates, 7856 and 1756,

  6  respectively, and the denominator of which is the air miles

  7  between the last channel termination point in this state and

  8  the first channel termination point outside this state.  The

  9  denominator of this fraction shall be adjusted, if necessary,

10  by adding the numerator of said fraction to similarly

11  determined air miles in the state in which the other channel

12  termination point is located, so that the summation of the

13  apportionment factor for this state and the apportionment

14  factor for the other state is not greater than one, to ensure

15  that no more than 100 percent of the interstate interoffice

16  channel mileage charge can be taxed by this state and another

17  state.

18         6.4.  The tax imposed pursuant to this paragraph shall

19  not exceed $50,000 per calendar year on charges to any person

20  for interstate telecommunications services defined in s.

21  203.012(4) and (7)(b), if the majority of such services used

22  by such person are for communications originating outside of

23  this state and terminating in this state.  This exemption

24  shall only be granted to holders of a direct pay permit issued

25  pursuant to this subparagraph.  No refunds shall be given for

26  taxes paid prior to receiving a direct pay permit. Upon

27  application, the department may issue a direct pay permit to

28  the purchaser of telecommunications services authorizing such

29  purchaser to pay tax on such services directly to the

30  department. Any vendor furnishing telecommunications services

31  to the holder of a valid direct pay permit shall be relieved

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    Florida Senate - 1999                            CS for SB 770
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  1  of the obligation to collect and remit the tax on such

  2  service. Tax payments and returns pursuant to a direct pay

  3  permit shall be monthly. For purposes of this subparagraph,

  4  the term "person" shall be limited to a single legal entity

  5  and shall not be construed as meaning a group or combination

  6  of affiliated entities or entities controlled by one person or

  7  group of persons.

  8         7.5.  If the sale of a television system program

  9  service, as defined in this paragraph, also involves the sale

10  of an item exempt under s. 212.08(7)(j), the tax shall be

11  applied to the value of the taxable service when it is sold

12  separately.  If the company does not offer this service

13  separately, the consideration paid shall be separately

14  identified and stated with respect to the taxable and exempt

15  portions of the transaction as a condition of the exemption,

16  except that the amount identified as taxable shall not be less

17  than the cost of the service.

18         Section 3.  Subsection (11) of section 212.12, Florida

19  Statutes, 1998 Supplement, is amended to read:

20         212.12  Dealer's credit for collecting tax; penalties

21  for noncompliance; powers of Department of Revenue in dealing

22  with delinquents; brackets applicable to taxable transactions;

23  records required.--

24         (11)  The department is authorized to provide by rule

25  the tax amounts and brackets applicable to all taxable

26  transactions that occur in counties that have a surtax at a

27  rate other than 1 percent which transactions would otherwise

28  have been transactions taxable at the rate of 6 percent.

29  Likewise, the department is authorized to promulgate by rule

30  the tax amounts and brackets applicable to transactions

31  taxable at 3 percent pursuant to s. 212.08(3), transactions

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    Florida Senate - 1999                            CS for SB 770
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  1  taxable at 7 percent pursuant to s. 212.05(1)(e)1. and 2., and

  2  on transactions which would otherwise have been so taxable in

  3  counties which have adopted a discretionary sales surtax.

  4         Section 4.  With respect to charges for

  5  telecommunication services which are regularly billed on a

  6  monthly cycle, the changes in the sales tax rate provided for

  7  in this act shall apply to charges appearing on any bill dated

  8  on or after February 1, 2000.

  9         Section 5.  This act shall take effect July 1, 1999.

10

11          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
12                              SB 770

13

14  The committee substitute makes the following changes to SB
    770:
15
    1)    Effective January 1, 2000, the bill reduces from 7% to
16        6.5%, the tax on the non-residential use of
          "telecommunication services" as defined in s. 203.012,
17        F.S., and on those services described in s.
          203.012(2)(a), F.S. Provides intent language for a
18        further reduction to 6% on January 1, 2001.

19  2)    Provides that the sales tax on prepaid calling cards
          will be assessed at the point of sale of the card,
20        instead of at the time of usage.

21  3)    Extends the sales tax exemption for rental fees for
          utility pole attachments to certain cellular and
22        personal communications systems tower attachments.

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