| 1 | A bill to be entitled |
| 2 | An act relating to the communications services tax; |
| 3 | amending s. 202.16, F.S.; requiring dealers to document |
| 4 | exempt sales for resale; providing requirements; providing |
| 5 | a definition; providing construction; providing for dealer |
| 6 | provision of evidence of the exempt status of certain |
| 7 | sales through an informal protest process; requiring the |
| 8 | Department of Revenue to accept certain evidence during |
| 9 | the protest period; providing limitations; providing for |
| 10 | retroactive application; amending s. 202.19, F.S.; |
| 11 | clarifying a characterization of the local communications |
| 12 | services tax as including certain fees and being in lieu |
| 13 | of such fees; amending s. 202.20, F.S.; limiting local |
| 14 | government authority to make certain rate adjustments in |
| 15 | the tax under certain circumstances; deleting obsolete |
| 16 | provisions relating to making certain adjustments in the |
| 17 | tax for certain periods; amending s. 202.21, F.S.; |
| 18 | deleting provisions relating to local government |
| 19 | adjustments of the tax by emergency ordinance or |
| 20 | resolution to conform; specifying that certain amendments |
| 21 | are remedial in nature and clarify certain provisions of |
| 22 | law but do not grant rights to refund of certain fees or |
| 23 | charges under certain circumstances; providing effective |
| 24 | dates. |
| 25 |
|
| 26 | Be It Enacted by the Legislature of the State of Florida: |
| 27 |
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| 28 | Section 1. Effective upon this act becoming a law, and |
| 29 | operating retroactively to December 31, 2004, subsection (2) of |
| 30 | section 202.16, Florida Statutes, is amended to read: |
| 31 | 202.16 Payment.--The taxes imposed or administered under |
| 32 | this chapter and chapter 203 shall be collected from all dealers |
| 33 | of taxable communications services on the sale at retail in this |
| 34 | state of communications services taxable under this chapter and |
| 35 | chapter 203. The full amount of the taxes on a credit sale, |
| 36 | installment sale, or sale made on any kind of deferred payment |
| 37 | plan is due at the moment of the transaction in the same manner |
| 38 | as a cash sale. |
| 39 | (2)(a) A sale of communications services that are used as |
| 40 | a component part of or integrated into a communications service |
| 41 | or prepaid calling arrangement for resale, including, but not |
| 42 | limited to, carrier-access charges, interconnection charges paid |
| 43 | by providers of mobile communication services or other |
| 44 | communication services, charges paid by cable service providers |
| 45 | for the transmission of video or other programming by another |
| 46 | dealer of communications services, charges for the sale of |
| 47 | unbundled network elements, and any other intercompany charges |
| 48 | for the use of facilities for providing communications services |
| 49 | for resale, must be made in compliance with the rules of the |
| 50 | department. Any person who makes a sale for resale which is not |
| 51 | in compliance with these rules is liable for any tax, penalty, |
| 52 | and interest due for failing to comply, to be calculated |
| 53 | pursuant to s. 202.28(2)(a). |
| 54 | (b)1. Any dealer who makes a sale for resale shall |
| 55 | document the exempt nature of the transaction, as established by |
| 56 | rules adopted by the department, by retaining a copy of the |
| 57 | purchaser's initial or annual resale certificate issued pursuant |
| 58 | to s. 202.17(6). In lieu of maintaining a copy of the |
| 59 | certificate, a dealer may document, prior to the time of sale, |
| 60 | an authorization number, provided telephonically or |
| 61 | electronically by the department, or by such other means |
| 62 | established by rule of the department. The dealer may rely on an |
| 63 | initial or annual resale certificate issued pursuant to s. |
| 64 | 202.17(6), valid at the time of receipt from the purchaser, |
| 65 | without seeking additional annual resale certificates from such |
| 66 | purchaser, if the dealer makes recurring sales to the purchaser |
| 67 | in the normal course of business on a continual basis. For |
| 68 | purposes of this paragraph, the term "recurring sales to a |
| 69 | purchaser in the normal course of business" means a sale in |
| 70 | which the dealer extends credit to the purchaser and records the |
| 71 | debt as an account receivable, or in which the dealer sells to a |
| 72 | purchaser who has an established cash account, similar to an |
| 73 | open credit account. For purposes of this paragraph, purchases |
| 74 | are made from a selling dealer on a continual basis if the |
| 75 | selling dealer makes, in the normal course of business, sales to |
| 76 | the purchaser no less frequently than once in every 12-month |
| 77 | period. |
| 78 | 2. A dealer may, through the informal protest process |
| 79 | provided for in s. 213.21 and the rules of the department, |
| 80 | provide the department with evidence of the exempt status of a |
| 81 | sale. Exemption certificates executed by entities that were |
| 82 | exempt at the time of sale, resale certificates provided by |
| 83 | purchasers who were active dealers at the time of sale, and |
| 84 | verification by the department of a purchaser's active dealer |
| 85 | status at the time of sale in lieu of a resale certificate shall |
| 86 | be accepted by the department when submitted during the protest |
| 87 | period but may not be accepted in any proceeding under chapter |
| 88 | 120 or any circuit court action instituted under chapter 72. |
| 89 | Section 2. Paragraph (a) of subsection (3) of section |
| 90 | 202.19, Florida Statutes, is amended to read: |
| 91 | 202.19 Authorization to impose local communications |
| 92 | services tax.-- |
| 93 | (3)(a) The tax authorized under this section includes and |
| 94 | is in lieu of any fee or other consideration, including, but not |
| 95 | limited to, application fees, transfer fees, renewal fees, or |
| 96 | claims for related costs, to which the municipality or county is |
| 97 | otherwise entitled for granting permission to dealers of |
| 98 | communications services, including, but not limited to, |
| 99 | providers of cable television services, as authorized in 47 |
| 100 | U.S.C. s. 542, to use or occupy its roads or rights-of-way for |
| 101 | the placement, construction, and maintenance of poles, wires, |
| 102 | and other fixtures used in the provision of communications |
| 103 | services. |
| 104 | Section 3. Paragraph (a) of subsection (2) of section |
| 105 | 202.20, Florida Statutes, is amended to read: |
| 106 | 202.20 Local communications services tax conversion |
| 107 | rates.-- |
| 108 | (2)(a)1. With respect to any local taxing jurisdiction, |
| 109 | if, for the periods ending December 31, 2001; March 31, 2002; |
| 110 | June 30, 2002; or September 30, 2002, the revenues received by |
| 111 | that local government from the local communications services tax |
| 112 | imposed under subsection (1) are less than the revenues received |
| 113 | from the replaced revenue sources for the corresponding 2000- |
| 114 | 2001 period; plus reasonably anticipated growth in such revenues |
| 115 | over the preceding 1-year period, based on the average growth of |
| 116 | such revenues over the immediately preceding 5-year period; plus |
| 117 | an amount representing the revenues from the replaced revenue |
| 118 | sources for the 1-month period that the local taxing |
| 119 | jurisdiction was required to forego, the governing authority may |
| 120 | adjust the rate of the local communications services tax upward |
| 121 | to the extent necessary to generate the entire shortfall in |
| 122 | revenues within 1 year after the rate adjustment and by an |
| 123 | amount necessary to generate the expected amount of revenue on |
| 124 | an ongoing basis. |
| 125 | 2. If complete data are not available at the time of |
| 126 | determining whether the revenues received by a local government |
| 127 | from the local communications services tax imposed under |
| 128 | subsection (1) are less than the revenues received from the |
| 129 | replaced revenue sources for the corresponding 2000-2001 period, |
| 130 | as set forth in subparagraph 1., the local government shall use |
| 131 | the best data available for the corresponding 2000-2001 period |
| 132 | in making such determination. |
| 133 | 3. The adjustment permitted under subparagraph 1. may be |
| 134 | made by emergency ordinance or resolution and may be made |
| 135 | notwithstanding the maximum rate established under s. 202.19(2) |
| 136 | and notwithstanding any schedules or timeframes or any other |
| 137 | limitations contained in this chapter. The authority of a local |
| 138 | government to make such adjustment may be exercised only if the |
| 139 | department or a dealer reallocates revenue away from the local |
| 140 | government. The emergency ordinance or resolution shall specify |
| 141 | an effective date for the adjusted rate, which shall be no less |
| 142 | than 60 days after the date of adoption of the ordinance or |
| 143 | resolution and shall be effective with respect to taxable |
| 144 | services included on bills that are dated on the first day of a |
| 145 | month subsequent to the expiration of the 60-day period. At the |
| 146 | end of 1 year following the effective date of such adjusted |
| 147 | rate, the local governing authority shall, as soon as is |
| 148 | consistent with s. 202.21, reduce the rate by that portion of |
| 149 | the emergency rate which was necessary to recoup the amount of |
| 150 | revenues not received prior to the implementation of the |
| 151 | emergency rate. |
| 152 | 4. If, for the period October 1, 2001, through September |
| 153 | 30, 2002, the revenues received by a local government from the |
| 154 | local communications services tax conversion rate established |
| 155 | under subsection (1), adjusted upward for the difference in |
| 156 | rates between paragraphs (1)(a) and (b) or any other rate |
| 157 | adjustments or base changes, are above the threshold of 10 |
| 158 | percent more than the revenues received from the replaced |
| 159 | revenue sources for the corresponding 2000-2001 period plus |
| 160 | reasonably anticipated growth in such revenues over the |
| 161 | preceding 1-year period, based on the average growth of such |
| 162 | revenues over the immediately preceding 5-year period, the |
| 163 | governing authority must adjust the rate of the local |
| 164 | communications services tax to the extent necessary to reduce |
| 165 | revenues to the threshold by emergency ordinance or resolution |
| 166 | within the timeframes established in subparagraph 3. The |
| 167 | foregoing rate adjustment requirement shall not apply to a local |
| 168 | government that adopts a local communications services tax rate |
| 169 | by resolution or ordinance. If complete data are not available |
| 170 | at the time of determining whether the revenues exceed the |
| 171 | threshold, the local government shall use the best data |
| 172 | available for the corresponding 2000-2001 period in making such |
| 173 | determination. This subparagraph shall not be construed as |
| 174 | establishing a right of action for any person to enforce this |
| 175 | subparagraph or challenge a local government's implementation of |
| 176 | this subparagraph. |
| 177 | Section 4. Effective July 1, 2007, subsection (2) of |
| 178 | section 202.20, Florida Statutes, as amended by this act, is |
| 179 | amended to read: |
| 180 | 202.20 Local communications services tax conversion |
| 181 | rates.-- |
| 182 | (2)(a)1. With respect to any local taxing jurisdiction, |
| 183 | if, for the periods ending December 31, 2001; March 31, 2002; |
| 184 | June 30, 2002; or September 30, 2002, the revenues received by |
| 185 | that local government from the local communications services tax |
| 186 | imposed under subsection (1) are less than the revenues received |
| 187 | from the replaced revenue sources for the corresponding 2000- |
| 188 | 2001 period; plus reasonably anticipated growth in such revenues |
| 189 | over the preceding 1-year period, based on the average growth of |
| 190 | such revenues over the immediately preceding 5-year period; plus |
| 191 | an amount representing the revenues from the replaced revenue |
| 192 | sources for the 1-month period that the local taxing |
| 193 | jurisdiction was required to forego, the governing authority may |
| 194 | adjust the rate of the local communications services tax upward |
| 195 | to the extent necessary to generate the entire shortfall in |
| 196 | revenues within 1 year after the rate adjustment and by an |
| 197 | amount necessary to generate the expected amount of revenue on |
| 198 | an ongoing basis. |
| 199 | 2. If complete data are not available at the time of |
| 200 | determining whether the revenues received by a local government |
| 201 | from the local communications services tax imposed under |
| 202 | subsection (1) are less than the revenues received from the |
| 203 | replaced revenue sources for the corresponding 2000-2001 period, |
| 204 | as set forth in subparagraph 1., the local government shall use |
| 205 | the best data available for the corresponding 2000-2001 period |
| 206 | in making such determination. |
| 207 | 3. The adjustment permitted under subparagraph 1. may be |
| 208 | made by emergency ordinance or resolution and may be made |
| 209 | notwithstanding the maximum rate established under s. 202.19(2) |
| 210 | and notwithstanding any schedules or timeframes or any other |
| 211 | limitations contained in this chapter. The authority of a local |
| 212 | government to make such adjustment may be exercised only if the |
| 213 | department or a dealer reallocates revenue away from the local |
| 214 | government. The emergency ordinance or resolution shall specify |
| 215 | an effective date for the adjusted rate, which shall be no less |
| 216 | than 60 days after the date of adoption of the ordinance or |
| 217 | resolution and shall be effective with respect to taxable |
| 218 | services included on bills that are dated on the first day of a |
| 219 | month subsequent to the expiration of the 60-day period. At the |
| 220 | end of 1 year following the effective date of such adjusted |
| 221 | rate, the local governing authority shall, as soon as is |
| 222 | consistent with s. 202.21, reduce the rate by that portion of |
| 223 | the emergency rate which was necessary to recoup the amount of |
| 224 | revenues not received prior to the implementation of the |
| 225 | emergency rate. |
| 226 | 4. If, for the period October 1, 2001, through September |
| 227 | 30, 2002, the revenues received by a local government from the |
| 228 | local communications services tax conversion rate established |
| 229 | under subsection (1), adjusted upward for the difference in |
| 230 | rates between paragraphs (1)(a) and (b) or any other rate |
| 231 | adjustments or base changes, are above the threshold of 10 |
| 232 | percent more than the revenues received from the replaced |
| 233 | revenue sources for the corresponding 2000-2001 period plus |
| 234 | reasonably anticipated growth in such revenues over the |
| 235 | preceding 1-year period, based on the average growth of such |
| 236 | revenues over the immediately preceding 5-year period, the |
| 237 | governing authority must adjust the rate of the local |
| 238 | communications services tax to the extent necessary to reduce |
| 239 | revenues to the threshold by emergency ordinance or resolution |
| 240 | within the timeframes established in subparagraph 3. The |
| 241 | foregoing rate adjustment requirement shall not apply to a local |
| 242 | government that adopts a local communications services tax rate |
| 243 | by resolution or ordinance. If complete data are not available |
| 244 | at the time of determining whether the revenues exceed the |
| 245 | threshold, the local government shall use the best data |
| 246 | available for the corresponding 2000-2001 period in making such |
| 247 | determination. This subparagraph shall not be construed as |
| 248 | establishing a right of action for any person to enforce this |
| 249 | subparagraph or challenge a local government's implementation of |
| 250 | this subparagraph. |
| 251 | (b) The term Except as otherwise provided in this |
| 252 | subsection, "replaced revenue sources," as used in this section, |
| 253 | means the following taxes, charges, fees, or other impositions |
| 254 | to the extent that the respective local taxing jurisdictions |
| 255 | were authorized to impose them prior to July 1, 2000. |
| 256 | (a)1. With respect to municipalities and charter counties |
| 257 | and the taxes authorized by s. 202.19(1): |
| 258 | 1.a. The public service tax on telecommunications |
| 259 | authorized by former s. 166.231(9). |
| 260 | 2.b. Franchise fees on cable service providers as |
| 261 | authorized by 47 U.S.C. s. 542. |
| 262 | 3.c. The public service tax on prepaid calling |
| 263 | arrangements. |
| 264 | 4.d. Franchise fees on dealers of communications services |
| 265 | which use the public roads or rights-of-way, up to the limit set |
| 266 | forth in s. 337.401. For purposes of calculating rates under |
| 267 | this section, it is the legislative intent that charter counties |
| 268 | be treated as having had the same authority as municipalities to |
| 269 | impose franchise fees on recurring local telecommunication |
| 270 | service revenues prior to July 1, 2000. However, the Legislature |
| 271 | recognizes that the authority of charter counties to impose such |
| 272 | fees is in dispute, and the treatment provided in this section |
| 273 | is not an expression of legislative intent that charter counties |
| 274 | actually do or do not possess such authority. |
| 275 | 5.e. Actual permit fees relating to placing or maintaining |
| 276 | facilities in or on public roads or rights-of-way, collected |
| 277 | from providers of long-distance, cable, and mobile |
| 278 | communications services for the fiscal year ending September 30, |
| 279 | 1999; however, if a municipality or charter county elects the |
| 280 | option to charge permit fees pursuant to s. 337.401(3)(c)1.a., |
| 281 | such fees shall not be included as a replaced revenue source. |
| 282 | (b)2. With respect to all other counties and the taxes |
| 283 | authorized in s. 202.19(1), franchise fees on cable service |
| 284 | providers as authorized by 47 U.S.C. s. 542. |
| 285 | Section 5. Effective July 1, 2007, section 202.21, Florida |
| 286 | Statutes, is amended to read: |
| 287 | 202.21 Effective dates; procedures for informing dealers |
| 288 | of communications services of tax levies and rate changes.--Any |
| 289 | adoption, repeal, or change in the rate of a local |
| 290 | communications services tax imposed under s. 202.19 is effective |
| 291 | with respect to taxable services included on bills that are |
| 292 | dated on or after the January 1 subsequent to such adoption, |
| 293 | repeal, or change. A municipality or county adopting, repealing, |
| 294 | or changing the rate of such tax must notify the department of |
| 295 | the adoption, repeal, or change by September 1 immediately |
| 296 | preceding such January 1. Notification must be furnished on a |
| 297 | form prescribed by the department and must specify the rate of |
| 298 | tax; the effective date of the adoption, repeal, or change |
| 299 | thereof; and the name, mailing address, and telephone number of |
| 300 | a person designated by the municipality or county to respond to |
| 301 | inquiries concerning the tax. The department shall provide |
| 302 | notice of such adoption, repeal, or change to all affected |
| 303 | dealers of communications services at least 90 days before the |
| 304 | effective date of the tax. Any local government that adjusts the |
| 305 | rate of its local communications services tax by emergency |
| 306 | ordinance or resolution pursuant to s. 202.20(2) shall notify |
| 307 | the department of the new tax rate immediately upon its |
| 308 | adoption. The department shall provide written notice of the |
| 309 | adoption of the new rate to all affected dealers within 30 days |
| 310 | after receiving such notice. In any notice to providers or |
| 311 | publication of local tax rates for purposes of this chapter, the |
| 312 | department shall express the rate for a municipality or charter |
| 313 | county as the sum of the tax rates levied within such |
| 314 | jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall |
| 315 | express the rate for any other county as the sum of the tax |
| 316 | rates levied pursuant to s. 202.19(2)(b) and (5). The department |
| 317 | is not liable for any loss of or decrease in revenue by reason |
| 318 | of any error, omission, or untimely action that results in the |
| 319 | nonpayment of a tax imposed under s. 202.19. |
| 320 | Section 6. The amendments to s. 202.19(3)(a), Florida |
| 321 | Statutes, contained in this act are remedial in nature and |
| 322 | intended to clarify the law in effect on October 1, 2001, but do |
| 323 | not grant any right to a refund of any fees or charges paid |
| 324 | prior to July 1, 2004, unless the payment was made under written |
| 325 | protest as to the authority of any local government to impose |
| 326 | such fees or costs on a dealer. |
| 327 | Section 7. Except as otherwise provided herein, this act |
| 328 | shall take effect upon becoming a law. |