Senate Bill sb2904

    Florida Senate - 2004                                  SB 2904

    By Senator Atwater





    25-1185A-04

  1                      A bill to be entitled

  2         An act relating to the communications services

  3         tax; creating s. 202.165, F.S.; providing a

  4         definition of the term "bundled transaction";

  5         providing guidelines for the taxation of

  6         bundled transactions that include

  7         communications services; amending s. 212.02,

  8         F.S.; redefining the term "sales price" for

  9         purposes of ch. 212, F.S.; providing an

10         effective date.

11  

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

13  

14         Section 1.  Section 202.165, Florida Statutes, is

15  created to read:

16         202.165  Taxable price of bundled transactions.--

17         (1)  For purposes of this section, the term "bundled

18  transaction" means a transaction consisting of distinct and

19  identifiable properties or services that are sold for a single

20  nonitemized sales price, but are treated differently for tax

21  purposes.

22         (2)  Notwithstanding any provision of s. 202.11(14) or

23  s. 212.02(16) to the contrary, in the case of a bundled

24  transaction that includes communications services:

25         (a)  If the sales price is attributable to properties

26  or services that are taxable under the laws of this state and

27  properties or services that are nontaxable, the portion of the

28  sales price attributable to the nontaxable properties or

29  services is taxable unless the selling dealer identifies and

30  allocates such portion based upon its books and records kept

31  in the regular course of business for other purposes.

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    Florida Senate - 2004                                  SB 2904
    25-1185A-04




 1         (b)  If the sales price is attributable to properties

 2  or services that are taxable under the laws of this state at

 3  different rates, the total sales price shall be treated as

 4  attributable to the properties or services taxable at the

 5  highest rate unless the selling dealer identifies and

 6  allocates the portion of the sales price attributable to the

 7  properties or services taxable at a lower rate based upon its

 8  books and records kept in the regular course of business for

 9  other purposes.

10         (3)  If, upon audit, the department determines that the

11  selling dealer did not reasonably identify and allocate the

12  portions of the nonitemized sales price for purposes of

13  collecting and remitting tax on those portions of the

14  nonitemized sales price subject to tax under the laws of this

15  state or on those portions that are taxable at varying rates,

16  the department may redetermine the allocation to ensure that

17  the tax has not been underpaid on the different properties or

18  services and determine and assess any resulting deficiency.

19  However, such redetermination must be supported by substantial

20  competent evidence.

21         (4)  The department may adopt rules relating to the

22  determination of whether the portions of the single

23  nonitemized sales price have been reasonably identified and

24  allocated based upon books and records and the types of books

25  and records used to support such allocation. The types of

26  books and records that a dealer may use to support such an

27  allocation include, but are not limited to, items such as the

28  dealer's general ledger, price lists, invoices, customer bills

29  and billing records, cost records, applicable tariffs and

30  other regulatory filings, and rules or orders of regulatory

31  authorities.

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    Florida Senate - 2004                                  SB 2904
    25-1185A-04




 1         (5)  Within 60 days after receipt of a written request

 2  from a customer who is under audit under chapter 202 or

 3  chapter 212, the selling dealer shall provide a written

 4  explanation of how the sales price for a bundled transaction

 5  was allocated to services and property involved in the

 6  transaction for purposes of determining the tax due. A

 7  customer is not liable for any tax, penalty, or interest

 8  resulting from the selling dealer's determination of the

 9  amount of tax due. This subsection does not apply to bundled

10  transactions that include mobile communications services.

11         (6)  This section does not create any customer right to

12  require that, for purposes of determining the amount of tax

13  applicable to a bundled transaction, the selling dealer or the

14  department allocate the sales price to the different portions

15  of such transaction in order to minimize the amount of tax

16  charged to the customer.

17         Section 2.  Subsection (16) of section 212.02, Florida

18  Statutes, is amended to read:

19         212.02  Definitions.--The following terms and phrases

20  when used in this chapter have the meanings ascribed to them

21  in this section, except where the context clearly indicates a

22  different meaning:

23         (16)  "Sales price" means the total amount paid for

24  tangible personal property, including any services that are a

25  part of the sale, valued in money, whether paid in money or

26  otherwise, and includes any amount for which credit is given

27  to the purchaser by the seller, without any deduction

28  therefrom on account of the cost of the property sold, the

29  cost of materials used, labor or service cost, interest

30  charged, losses, or any other expense whatsoever.  "Sales

31  price" also includes the consideration for a transaction which

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    Florida Senate - 2004                                  SB 2904
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 1  requires both labor and material to alter, remodel, maintain,

 2  adjust, or repair tangible personal property. Trade-ins or

 3  discounts allowed and taken at the time of sale shall not be

 4  included within the purview of this subsection. "Sales price"

 5  also includes the full face value of any coupon used by a

 6  purchaser to reduce the price paid to a retailer for an item

 7  of tangible personal property; where the retailer will be

 8  reimbursed for such coupon, in whole or in part, by the

 9  manufacturer of the item of tangible personal property; or

10  whenever it is not practicable for the retailer to determine,

11  at the time of sale, the extent to which reimbursement for the

12  coupon will be made. The term "sales price" does not include

13  federal excise taxes imposed upon the retailer on the sale of

14  tangible personal property. The term "sales price" does

15  include federal manufacturers' excise taxes, even if the

16  federal tax is listed as a separate item on the invoice.

17  Section 202.165 applies to determining the sales price of a

18  bundled transaction that includes communications services as

19  defined in s. 202.11(3).

20         Section 3.  This act shall take effect January 1, 2005.

21  

22            *****************************************

23                          SENATE SUMMARY

24    Provides guidelines for the taxation of bundled
      transactions that include communications services. (See
25    bill for details.)

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