Senate Bill sb1764

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    Florida Senate - 2001                                  SB 1764

    By Senators Posey, Sanderson and Peaden





    15-954-01                                               See HB

  1                      A bill to be entitled

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

  3         other transactions; amending s. 212.08, F.S.;

  4         providing an exemption, in specified

  5         circumstances, for sales of tangible personal

  6         property made to contractors employed either

  7         directly by or as agents of certain governments

  8         or political subdivisions thereof when the

  9         tangible personal property becomes part of

10         public works owned by the government or

11         political subdivision; providing an effective

12         date.

13

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

15

16         Section 1.  Subsection (6) of section 212.08, Florida

17  Statutes, is amended, and subsection (18) is added to that

18  section, to read:

19         212.08  Sales, rental, use, consumption, distribution,

20  and storage tax; specified exemptions.--The sale at retail,

21  the rental, the use, the consumption, the distribution, and

22  the storage to be used or consumed in this state of the

23  following are hereby specifically exempt from the tax imposed

24  by this chapter.

25         (6)  EXEMPTIONS; POLITICAL SUBDIVISIONS.--There are

26  also exempt from the tax imposed by this chapter sales made to

27  the United States Government, a state, or any county,

28  municipality, or political subdivision of a state when payment

29  is made directly to the dealer by the governmental entity.

30  This exemption shall not inure to any transaction otherwise

31  taxable under this chapter when payment is made by a

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1  government employee by any means, including, but not limited

  2  to, cash, check, or credit card when that employee is

  3  subsequently reimbursed by the governmental entity. Unless the

  4  conditions set forth in subsection (18) have been met, this

  5  exemption does not include sales of tangible personal property

  6  made to contractors employed either directly or as agents of

  7  any such government or political subdivision thereof when such

  8  tangible personal property goes into or becomes a part of

  9  public works owned by such government or political

10  subdivision. A determination whether a particular transaction

11  is properly characterized as an exempt sale to a government

12  entity or a taxable sale to a contractor shall be based on the

13  substance of the transaction rather than the form in which the

14  transaction is cast. The department shall adopt rules that

15  give special consideration to factors that govern the status

16  of the tangible personal property before its affixation to

17  real property. In developing these rules, assumption of the

18  risk of damage or loss is of paramount consideration in the

19  determination. This exemption does not include sales, rental,

20  use, consumption, or storage for use in any political

21  subdivision or municipality in this state of machines and

22  equipment and parts and accessories therefor used in the

23  generation, transmission, or distribution of electrical energy

24  by systems owned and operated by a political subdivision in

25  this state for transmission or distribution expansion.

26  Likewise exempt are charges for services rendered by radio and

27  television stations, including line charges, talent fees, or

28  license fees and charges for films, videotapes, and

29  transcriptions used in producing radio or television

30  broadcasts. The exemption provided in this subsection does not

31  include sales, rental, use, consumption, or storage for use in

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1  any political subdivision or municipality in this state of

  2  machines and equipment and parts and accessories therefor used

  3  in providing two-way telecommunications services to the public

  4  for hire by the use of a telecommunications facility, as

  5  defined in s. 364.02(13), and for which a certificate is

  6  required under chapter 364, which facility is owned and

  7  operated by any county, municipality, or other political

  8  subdivision of the state.  Any immunity of any political

  9  subdivision of the state or other entity of local government

10  from taxation of the property used to provide

11  telecommunication services that is taxed as a result of this

12  section is hereby waived.  However, the exemption provided in

13  this subsection includes transactions taxable under this

14  chapter which are for use by the operator of a public-use

15  airport, as defined in s. 332.004, in providing such

16  telecommunications services for the airport or its tenants,

17  concessionaires, or licensees, or which are for use by a

18  public hospital for the provision of such telecommunications

19  services.

20         (18)  SALES TO CONTRACTORS ON BEHALF OF GOVERNMENTS.--

21         (a)  Sales of tangible personal property which are made

22  to contractors employed either directly by or as agents of the

23  United States Government, a state, a county, a municipality,

24  or a political subdivision of a state are exempt if all of the

25  following conditions are met:

26         1.  At the time of the sale, the governmental entity or

27  political subdivision holds a current consumer's certificate

28  of exemption from the department.

29         2.  The tangible personal property purchased by the

30  contractor will go into or become part of a public facility

31  owned by the governmental entity or political subdivision.

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1  Tangible personal property purchased and used by a contractor

  2  in the course of performing a contract that does not become

  3  part of the public facility is not exempt under this

  4  subsection.

  5         3.  The governmental entity or political subdivision

  6  bears the economic burden of the cost of the tangible personal

  7  property either through direct reimbursement of the cost to

  8  the contractor under the contract or inclusion of the cost in

  9  the contractor's price for performance of the contract.

10         4.  The governmental entity or political subdivision,

11  general contractor, or a subcontractor presents to the seller

12  before or at the time of a purchase:

13         a.  A copy of a current, valid Florida consumer's

14  certificate of exemption held by the governmental entity or

15  political subdivision;

16         b.  A signed, dated statement of an officer or

17  authorized employee of the governmental entity or political

18  subdivision which identifies a specific public works project

19  and names the contractor or contractors who have been engaged

20  to perform work on the identified project and have been

21  authorized to make exempt purchases of materials for the

22  project; and

23         c.  A signed, dated statement of the purchasing

24  contractor which certifies that all purchases made by that

25  contractor and identified at the time of purchase as

26  pertaining to the public works project specified in the

27  statement of the governmental entity or political subdivision

28  will be for incorporation into that public works project.

29

30  A seller may rely on a single copy of the governmental

31  entity's or political subdivision's consumer's certificate of

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1  exemption and a single signed, dated statement from the

  2  governmental entity or political subdivision in making sales

  3  to any contractor named on that statement, as long as the

  4  other certification and recordkeeping requirements of this

  5  section are also satisfied. A seller may rely on a single

  6  signed statement of a purchasing contractor in making sales to

  7  that contractor for the public works project specified in that

  8  statement, as long as the other certification and

  9  recordkeeping requirements of this section are also satisfied.

10         5.  The records of the seller contain documentation for

11  each exempt purchase which includes:

12         a.  A purchase order from the contractor which

13  specifically identifies, by description and quantity, the

14  tangible personal property that is being purchased for

15  incorporation by the contractor into a specifically named

16  public works project; or

17         b.  Electronic or other records of the seller which

18  establish that the purchased tangible personal property,

19  identified by description and quantity, was charged by a

20  contractor who has provided a statement as described in

21  subparagraph 4. to an account to which only purchases for the

22  public works project specified in that statement are charged.

23         6.  The statements of the governmental entity or

24  political subdivision and of the purchasing contractor which

25  are described in this paragraph must be dated and must contain

26  the following printed or typed declaration at the end of the

27  statement and immediately above the signature of the public

28  officer or employee or contractor "Under penalty of perjury, I

29  declare that I have read the foregoing statement and that the

30  facts stated in it are true."

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1         7.  The seller verifies, before the exemption is

  2  granted as to any purchase, that a purchasing contractor is

  3  named in the statement from the governmental entity or

  4  political subdivision and that the project identified in the

  5  statement of the contractor is the same project as that

  6  identified in the statement of the governmental entity or

  7  political subdivision.

  8         (b)1.  The seller must maintain in its records the

  9  certificate, statements, and other records described in

10  paragraph (a) to document the exempt status of any sale for

11  the period of time during which the department may conduct an

12  audit of the seller's books and records. A dealer may, through

13  the informal protest provided for in s. 213.21 and the rules

14  of the department, provide the department with evidence of the

15  exempt status of a sale. A consumer's certificate of exemption

16  executed by a governmental entity or political subdivision

17  that was registered with the department at the time of the

18  sale, a statement of the governmental entity as described in

19  sub-subparagraph (a)4.b. which had been issued and signed

20  before or on the date of the sale for which the exemption was

21  claimed, and a purchasing contractor's statement as described

22  in sub-subparagraph (a)4.c. from a contractor that could have

23  issued the statement at the time of the sale shall be accepted

24  by the department when submitted during the protest period,

25  but may not be accepted in any proceeding under chapter 120 or

26  any circuit court action instituted under chapter 72. No

27  exemption will be recognized for any purchase made by a

28  contractor before the date on which a governmental entity or

29  political subdivision has issued a signed and dated statement

30  authorizing that contractor to make exempt purchases for a

31  specified public works project.

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    Florida Senate - 2001                                  SB 1764
    15-954-01                                               See HB




  1         2.  A contractor that claims exemption under this

  2  subsection must maintain records to establish that the

  3  materials purchased were actually incorporated into the public

  4  works project described in the contractor's statement. The

  5  contractor must accrue and remit use tax on any items

  6  purchased as exempt under this section which are not

  7  incorporated into the public works project, unless the items

  8  are transferred to the governmental entity or political

  9  subdivision or returned to the seller for a credit to the

10  contractor's account. The contractor must maintain records to

11  document any such transfers or returns.

12         3.  Any person who fraudulently, for the purpose of

13  evading taxes, issues a written statement for use in claiming

14  an exemption under this subsection for materials that do not

15  satisfy the requirements for the exemption, in addition to

16  being liable for the payment of the tax due on the materials,

17  is subject to the penalties provided in s. 212.085.

18         Section 2.  This act shall take effect January 1, 2002.

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20            *****************************************

21                          SENATE SUMMARY

22    Provides an exemption from the tax on sales, use, and
      other transactions, in specified circumstances, for sales
23    of tangible personal property made to contractors
      employed either directly by or as agents of certain
24    governments or political subdivisions thereof when the
      tangible personal property becomes part of public works
25    owned by the government or political subdivision.

26

27

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29

30

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