House Bill hb0169

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    Florida House of Representatives - 2002                 HB 169

        By Representative Weissman






  1                      A bill to be entitled

  2         An act relating to taxation; amending s.

  3         72.011, F.S.; revising provisions relating to

  4         the venue of taxpayer actions in circuit court;

  5         revising provisions which specify the

  6         requirements of said section which are

  7         jurisdictional; amending s. 212.12, F.S.;

  8         providing the methods by which a taxpayer is

  9         entitled to establish the amount of an

10         overpayment of the tax on sales, use, and other

11         transactions under certain conditions; amending

12         s. 213.21, F.S.; providing for review of the

13         facts and circumstances to determine the

14         existence of reasonable cause in connection

15         with the assessment of a penalty against a

16         taxpayer; amending s. 220.03, F.S.; providing

17         for the tax classification of entities under

18         the Florida Income Tax Code; amending s.

19         608.471, F.S.; providing for the treatment of

20         single member limited liability companies and

21         other entities that are disregarded for federal

22         income tax purposes; providing an effective

23         date.

24

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

26

27         Section 1.  Paragraph (a) of subsection (4) and

28  subsection (5) of section 72.011, Florida Statutes, are

29  amended to read:

30

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    Florida House of Representatives - 2002                 HB 169

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  1         72.011  Jurisdiction of circuit courts in specific tax

  2  matters; administrative hearings and appeals; time for

  3  commencing action; parties; deposits.--

  4         (1)(a)  A taxpayer may contest the legality of any

  5  assessment or denial of refund of tax, fee, surcharge, permit,

  6  interest, or penalty provided for under s. 125.0104, s.

  7  125.0108, chapter 198, chapter 199, chapter 201, chapter 202,

  8  chapter 203, chapter 206, chapter 207, chapter 210, chapter

  9  211, chapter 212, chapter 213, chapter 220, chapter 221, s.

10  370.07(3), chapter 376, s. 403.717, s. 403.718, s. 403.7185,

11  s. 538.09, s. 538.25, chapter 550, chapter 561, chapter 562,

12  chapter 563, chapter 564, chapter 565, chapter 624, or s.

13  681.117 by filing an action in circuit court; or,

14  alternatively, the taxpayer may file a petition under the

15  applicable provisions of chapter 120. However, once an action

16  has been initiated under s. 120.56, s. 120.565, s. 120.569, s.

17  120.57, or s. 120.80(14)(b), no action relating to the same

18  subject matter may be filed by the taxpayer in circuit court,

19  and judicial review shall be exclusively limited to appellate

20  review pursuant to s. 120.68; and once an action has been

21  initiated in circuit court, no action may be brought under

22  chapter 120.

23         (b)  A taxpayer may not file an action under paragraph

24  (a) to contest an assessment or a denial of refund of any tax,

25  fee, surcharge, permit, interest, or penalty relating to the

26  statutes listed in paragraph (a) until the taxpayer complies

27  with the applicable registration requirements contained in

28  those statutes which apply to the tax for which the action is

29  filed.

30         (2)(a)  An action may not be brought to contest an

31  assessment of any tax, interest, or penalty assessed under a

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  1  section or chapter specified in subsection (1) more than 60

  2  days after the date the assessment becomes final. An action

  3  may not be brought to contest a denial of refund of any tax,

  4  interest, or penalty paid under a section or chapter specified

  5  in subsection (1) more than 60 days after the date the denial

  6  becomes final.

  7         (b)  The date on which an assessment or a denial of

  8  refund becomes final and procedures by which a taxpayer must

  9  be notified of the assessment or of the denial of refund must

10  be established:

11         1.  By rule adopted by the Department of Revenue;

12         2.  With respect to assessments or refund denials under

13  chapter 207, by rule adopted by the Department of Highway

14  Safety and Motor Vehicles;

15         3.  With respect to assessments or refund denials under

16  chapters 210, 550, 561, 562, 563, 564, and 565, by rule

17  adopted by the Department of Business and Professional

18  Regulation; or

19         4.  With respect to taxes that a county collects or

20  enforces under s. 125.0104(10) or s. 212.0305(5), by an

21  ordinance that may additionally provide for informal dispute

22  resolution procedures in accordance with s. 213.21.

23         (c)  The applicable department or county need not file

24  or docket an assessment or a refund denial with the agency

25  clerk or county official designated by ordinance in order for

26  the assessment or refund denial to become final for purposes

27  of an action initiated under this chapter or chapter 120.

28         (3)  In any action filed in circuit court contesting

29  the legality of any tax, interest, or penalty assessed under a

30  section or chapter specified in subsection (1), the plaintiff

31  must:

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  1         (a)  Pay to the applicable department or county the

  2  amount of the tax, penalty, and accrued interest assessed by

  3  the department or county which is not being contested by the

  4  taxpayer; and either

  5         (b)1.  Tender into the registry of the court with the

  6  complaint the amount of the contested assessment complained

  7  of, including penalties and accrued interest, unless this

  8  requirement is waived in writing by the executive director of

  9  the applicable department or by the county official designated

10  by ordinance; or

11         2.  File with the complaint a cash bond or a surety

12  bond for the amount of the contested assessment endorsed by a

13  surety company authorized to do business in this state, or by

14  any other security arrangement as may be approved by the

15  court, and conditioned upon payment in full of the judgment,

16  including the taxes, costs, penalties, and interest, unless

17  this requirement is waived in writing by the executive

18  director of the applicable department or by the county

19  official designated by ordinance.

20

21  Failure to pay the uncontested amount as required in paragraph

22  (a) shall result in the dismissal of the action and imposition

23  of an additional penalty in the amount of 25 percent of the

24  tax assessed. Provided, however, that if, at any point in the

25  action, it is determined or discovered that a plaintiff, due

26  to a good faith de minimis error, failed to comply with any of

27  the requirements of paragraph (a) or paragraph (b), the

28  plaintiff shall be given a reasonable time within which to

29  comply before the action is dismissed. For purposes of this

30  subsection, there shall be a rebuttable presumption that if

31  the error involves an amount equal to or less than 5 percent

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    Florida House of Representatives - 2002                 HB 169

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  1  of the total assessment the error is de minimis and that if

  2  the error is more than 5 percent of the total assessment the

  3  error is not de minimis.

  4         (4)(a)  Except as provided in paragraph (b), an action

  5  initiated in circuit court pursuant to subsection (1) shall be

  6  filed in the Second Judicial Circuit Court in and for Leon

  7  County or in the circuit court in the county where the

  8  taxpayer resides, or maintains its principal commercial

  9  domicile in this state, or regularly maintains its books and

10  records in this state.

11         (b)  Venue in an action initiated in circuit court

12  pursuant to subsection (1) by a taxpayer that is not a

13  resident of this state or that does not maintain a commercial

14  domicile in this state shall be in Leon County. Venue in an

15  action contesting the legality of an assessment or refund

16  denial arising under chapter 198 shall be in the circuit court

17  having jurisdiction over the administration of the estate.

18         (5)  The requirements of subsections (1), (2), and (3)

19  this section are jurisdictional.

20         (6)  Any action brought under this chapter is not

21  subject to the provisions of chapter 45 as amended by chapter

22  87-249, Laws of Florida, relating to offers of settlement.

23         Section 2.  Paragraph (d) is added to subsection (6) of

24  section 212.12, Florida Statutes, to read:

25         212.12  Dealer's credit for collecting tax; penalties

26  for noncompliance; powers of Department of Revenue in dealing

27  with delinquents; brackets applicable to taxable transactions;

28  records required.--

29         (6)

30         (d)  A taxpayer is entitled, both in connection with an

31  audit and in connection with an application for refund filed

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    Florida House of Representatives - 2002                 HB 169

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  1  independently of any audit, to establish the amount of an

  2  overpayment through statistical sampling when the taxpayer's

  3  records, other than those regarding fixed assets, are adequate

  4  but voluminous. Alternatively, a taxpayer is entitled to

  5  establish an overpayment through any other sampling method

  6  agreed upon by the taxpayer and the department when the

  7  taxpayer's records, other than those regarding fixed assets,

  8  are adequate but voluminous.

  9         Section 3.  Paragraph (a) of subsection (3) of section

10  213.21, Florida Statutes, is amended to read:

11         213.21  Informal conferences; compromises.--

12         (3)(a)  A taxpayer's liability for any tax or interest

13  specified in s. 72.011(1) may be compromised by the department

14  upon the grounds of doubt as to liability for or

15  collectibility of such tax or interest. A taxpayer's liability

16  for penalties under any of the chapters specified in s.

17  72.011(1) may be settled or compromised if it is determined by

18  the department that the noncompliance is due to reasonable

19  cause and not to willful negligence, willful neglect, or

20  fraud. The facts and circumstances are subject to de novo

21  review to determine the existence of reasonable cause in any

22  administrative proceeding or judicial action challenging an

23  assessment of penalty under any of the chapters specified in

24  s. 72.011(1). A taxpayer who establishes reasonable reliance

25  on the written advice issued by the department to the taxpayer

26  will be deemed to have shown reasonable cause for the

27  noncompliance. In addition, a taxpayer's liability for

28  penalties under any of the chapters specified in s. 72.011(1)

29  in excess of 25 percent of the tax shall be settled or

30  compromised if the department determines that the

31  noncompliance is due to reasonable cause and not to willful

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    Florida House of Representatives - 2002                 HB 169

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  1  negligence, willful neglect, or fraud. The department shall

  2  maintain records of all compromises, and the records shall

  3  state the basis for the compromise. The records of compromise

  4  under this paragraph shall not be subject to disclosure

  5  pursuant to s. 119.07(1) and shall be considered confidential

  6  information governed by the provisions of s. 213.053.

  7         Section 4.  Subsection (2) of section 220.03, Florida

  8  Statutes, is amended to read:

  9         220.03  Definitions.--

10         (2)  DEFINITIONAL RULES.--When used in this code and

11  neither otherwise distinctly expressed nor manifestly

12  incompatible with the intent thereof:

13         (a)  The word "corporation" or "taxpayer" shall be

14  deemed to include the words "and its successors and assigns"

15  as if these words, or words of similar import, were

16  expressed.;

17         (b)  Any term used in any section of this code with

18  respect to the application of, or in connection with, the

19  provisions of any other section of this code shall have the

20  same meaning as in such other section.; and

21         (c)  Any term used in this code shall have the same

22  meaning as when used in a comparable context in the Internal

23  Revenue Code and other statutes of the United States relating

24  to federal income taxes, as such code and statutes are in

25  effect on January 1, 2001. However, if subsection (3) is

26  implemented, the meaning of any term shall be taken at the

27  time the term is applied under this code.

28         (d)  Notwithstanding any other provision of this

29  chapter, the tax classification of an entity, including a

30  single member entity, as determined under ss. 7701 and 7704 of

31  the Internal Revenue Code and the Treasury Regulations

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  1  promulgated thereunder, is determinative of the entity's

  2  classification under this chapter.

  3         Section 5.  Subsection (3) is added to section 608.471,

  4  Florida Statutes, to read:

  5         608.471  Tax exemption on income of certain limited

  6  liability companies.--

  7         (3)  Single member limited liability companies and

  8  other entities that are disregarded for federal income tax

  9  purposes must be treated as separate legal entities for all

10  non-income-tax purposes. The Department of Revenue shall adopt

11  rules to take into account that single member disregarded

12  entities such as limited liability companies and qualified

13  subchapter S corporations may be disregarded as separate

14  entities for federal tax purposes and therefore may report and

15  account for income, employment, and other taxes under the

16  taxpayer identification number of the owner of the single

17  member entity.

18         Section 6.  This act shall take effect July 1, 2002.

19

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

21                          HOUSE SUMMARY

22
      Revises provisions relating to tax administration in the
23    following areas:
           1.  Taxpayer actions in circuit court and the venue
24    thereof.
           2.  Methods for establishing the amount of an
25    overpayment of sales tax.
           3.  Determining existence of reasonable cause in
26    connection with assessment of a penalty against a
      taxpayer.
27         4.  Classification of entities under the Florida
      Income Tax Code.
28         5.  Treatment of certain entities that are
      disregarded for federal income tax purposes.
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