Senate Bill sb0056c1

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    Florida Senate - 2005                             CS for SB 56

    By the Committee on Government Efficiency Appropriations; and
    Senator Campbell




    593-1111-05

  1                      A bill to be entitled

  2         An act relating to the Streamlined Sales and

  3         Use Tax Agreement; amending s. 212.02, F.S.;

  4         redefining the terms "lease," "let," "rental,"

  5         "sales price," and "tangible personal property"

  6         and defining the terms "agent," "seller,"

  7         "model 1 seller," "model 2 seller," "model 3

  8         seller," "certified service provider," "direct

  9         mail," "prewritten computer software," and

10         "delivery charges" for purposes of sales and

11         use taxes; providing applicability; amending s.

12         212.0306, F.S.; deleting references to

13         brackets; amending s. 212.04, F.S.; deleting a

14         reference to brackets; amending s. 212.05,

15         F.S.; deleting provisions relating to the

16         rental or lease of motor vehicles; providing

17         for determining the location of the sale or

18         recharge of prepaid calling arrangements;

19         deleting a reference to brackets; correcting a

20         cross-reference; amending s. 212.0506, F.S.;

21         deleting a reference to brackets; correcting a

22         cross-reference; amending s. 212.054, F.S.;

23         limiting the $5,000 cap on discretionary sales

24         surtax to the sale of motor vehicles, aircraft,

25         boats, modular homes, manufactured homes, or

26         mobile homes; providing the time for applying

27         changes in local option tax rates; providing

28         guidelines for determining the situs of certain

29         transactions; providing for notice of a change

30         in the rate of a local option sales tax;

31         providing for applicability of s. 202.22(2),

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 1         F.S., relating to determination of local tax

 2         situs, for the purpose of providing and

 3         maintaining a database of sales and use tax

 4         rates for local jurisdictions; amending s.

 5         212.06, F.S.; defining terms; providing rules

 6         for determining the location of transactions

 7         involving the retail sale of tangible personal

 8         property, digital goods, or services and for

 9         the lease or rental of tangible personal

10         property; requiring certain business purchasers

11         to obtain multiple points of use exemption

12         forms; providing for use of such forms;

13         requiring certain purchasers of direct mail to

14         obtain a direct mail form; providing for the

15         use of such form; amending s. 212.08, F.S.,

16         relating to exemptions from the sales and use

17         tax; defining and redefining terms used with

18         respect to the exemption for general groceries;

19         defining and redefining terms used with respect

20         to the exemption for medical products and

21         supplies; revising that exemption; providing an

22         exemption for certain farm equipment; amending

23         s. 212.095, F.S.; revising provisions relating

24         to refunds; creating s. 212.094, F.S.;

25         requiring a purchaser seeking a refund or

26         credit under chapter 212, F.S., to submit a

27         written request for the refund or credit;

28         providing a time period within which the dealer

29         must respond to the written request; amending

30         s. 212.12, F.S.; providing for a monetary

31         allowance to certified service providers and

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 1         voluntary sellers pursuant to Article VI of the

 2         Agreement; defining terms; deleting brackets;

 3         providing for computation of tax due; deleting

 4         the brackets for discretionary sales surtax

 5         calculations; amending s. 212.17, F.S.;

 6         prescribing additional guidelines and

 7         procedures with respect to dealer credits for

 8         taxes paid on worthless accounts; amending s.

 9         212.18, F.S.; authorizing the Department of

10         Revenue to waive the dealer registration fee

11         for applications submitted through the central

12         electronic registration system provided by

13         member states of the Streamlined Sales and Use

14         Tax Agreement; creating s. 213.052, F.S.;

15         providing for notice of state sales or use tax

16         rate changes; creating s. 213.0521, F.S.;

17         providing the effective date for state sales

18         and use tax rate changes; amending s. 213.21,

19         F.S.; providing for amnesty to certain sellers

20         for uncollected or unpaid sales and use taxes;

21         amending s. 213.256, F.S., relating to

22         simplified sales and use tax administration;

23         defining terms; providing that authority to

24         administer the Streamlined Sales and Use Tax

25         Agreement rests with a governing board

26         comprised of representatives of member states;

27         providing for continuing effect of the

28         agreement; providing for annual recertification

29         by member states; creating s. 213.2567, F.S.;

30         providing for the registration of sellers, the

31         certification of a person as a certified

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 1         service provider, and the certification of a

 2         software program as a certified automated

 3         system by the governing board under the

 4         Streamlined Sales and Use Tax Agreement;

 5         amending s. 212.055, F.S.; conforming a

 6         cross-reference; repealing s. 212.0596(6),

 7         F.S., relating to the exemption from collecting

 8         and remitting any local option surtax for

 9         certain dealers who make mail order sales;

10         declaring legislative intent; providing for the

11         adoption of emergency rules; providing an

12         effective date.

13  

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

15  

16         Section 1.  Paragraph (g) of subsection (10) and

17  subsections (16) and (19) of section 212.02, Florida Statutes,

18  are amended, and subsections (35), (36), (37), (38), (39),

19  (40), (41), (42), and (43) are added to that section, to read:

20         212.02  Definitions.--The following terms and phrases

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

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

23  different meaning:

24         (10)  "Lease," "let," or "rental" means leasing or

25  renting of living quarters or sleeping or housekeeping

26  accommodations in hotels, apartment houses, roominghouses,

27  tourist or trailer camps and real property, the same being

28  defined as follows:

29         (g)1.  "Lease," "let," or "rental" also means any

30  transfer of possession or control of tangible personal

31  property for a fixed or indeterminate term for consideration.

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 1  A clause for a future option to purchase or to extend the

 2  agreement does not preclude an agreement from being a lease or

 3  rental. This definition shall be used for purposes of the

 4  sales and use tax regardless of whether a transaction is

 5  characterized as a lease or rental under generally accepted

 6  accounting principles, the Internal Revenue Code, the Uniform

 7  Commercial Code, or other provisions of federal, state, or

 8  local law. This definition includes agreements covering motor

 9  vehicles and trailers if the amount of consideration may be

10  increased or decreased by reference to the amount realized

11  upon sale or disposition of the property as provided in 26

12  U.S.C. s. 7701(h)(1). This definition does not include:

13         a.  A transfer of possession or control of property

14  under a security agreement or deferred payment plan that

15  requires the transfer of title upon completion of the required

16  payments;

17         b.  A transfer of possession or control of property

18  under an agreement that requires the transfer of title upon

19  completion of required payments and payment of an option price

20  that does not exceed the greater of $100 or 1 percent of the

21  total required payments; or

22         c.  A provision of tangible personal property along

23  with an operator for a fixed or indeterminate period of time.

24  A condition of this exclusion is that the operator is

25  necessary for the equipment to perform as designed. For the

26  purpose of this sub-subparagraph, an operator must do more

27  than maintain, inspect, or set up the tangible personal

28  property. the leasing or rental of tangible personal property

29  and the possession or use thereof by the lessee or rentee for

30  a consideration, without transfer of the title of such

31  property, except as expressly provided to the contrary herein.

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 1         2.  The term "lease," "let," or "rental" does not mean

 2  hourly, daily, or mileage charges, to the extent that such

 3  charges are subject to the jurisdiction of the United States

 4  Interstate Commerce Commission, when such charges are paid by

 5  reason of the presence of railroad cars owned by another on

 6  the tracks of the taxpayer, or charges made pursuant to car

 7  service agreements. The term "lease," "let," "rental," or

 8  "license" does not include payments made to an owner of

 9  high-voltage bulk transmission facilities in connection with

10  the possession or control of such facilities by a regional

11  transmission organization, independent system operator, or

12  similar entity under the jurisdiction of the Federal Energy

13  Regulatory Commission. However, where two taxpayers, in

14  connection with the interchange of facilities, rent or lease

15  property, each to the other, for use in providing or

16  furnishing any of the services mentioned in s. 166.231, the

17  term "lease or rental" means only the net amount of rental

18  involved.

19         (16)(a)  "Sales price" applies to the measure subject

20  to sales tax and means the total amount of consideration,

21  including cash, credit, property, and services, for which

22  personal property or services are sold, leased, or rented,

23  valued in money, whether received in money or otherwise,

24  without any deduction for:

25         1.  The seller's cost of the property sold;

26         2.  The cost of materials used, labor or service cost,

27  interest, losses, all costs of transportation to the seller,

28  all taxes imposed on the seller, and any other expense of the

29  seller;

30  

31  

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 1         3.  Charges by the seller for any services necessary to

 2  complete the sale, other than delivery and installation

 3  charges;

 4         4.  Delivery charges; or

 5         5.  Installation charges.

 6         (b)  The term "sales price" does not include:

 7         1.  Trade-ins allowed and taken at the time of sale if

 8  the amount is separately stated on the invoice, bill of sale,

 9  or similar document given to the purchaser;

10         2.  Discounts, including cash, term, or coupons, which

11  are not reimbursed by a third party, are allowed by a seller,

12  and taken by a purchaser at the time of sale;

13         3.  Interest, financing, and carrying charges from

14  credit extended on the sale of personal property or services,

15  if the amount is separately stated on the invoice, bill of

16  sale, or similar document given to the purchaser; or

17         4.  Any taxes legally imposed directly on the consumer

18  which are separately stated on the invoice, bill of sale, or

19  similar document given to the purchaser.

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

21  tangible personal property, including any services that are a

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

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

24  to the purchaser by the seller, without any deduction

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

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

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

28  price" also includes the consideration for a transaction which

29  requires both labor and material to alter, remodel, maintain,

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

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

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 1  included within the purview of this subsection "Sales price"

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

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

 4  of tangible personal property; where the retailer will be

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

 6  manufacturer of the item of tangible personal property; or

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

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

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

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

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

12  include federal manufacturers' excise taxes, even if the

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

14         (19)  "Tangible personal property" means and includes

15  personal property which may be seen, weighed, measured, or

16  touched or is in any manner perceptible to the senses,

17  including electric power or energy, water, gas, steam,

18  prewritten computer software, boats, motor vehicles and mobile

19  homes as defined in s. 320.01(1) and (2), aircraft as defined

20  in s. 330.27, and all other types of vehicles.  The term

21  "tangible personal property" does not include stocks, bonds,

22  notes, insurance, or other obligations or securities;

23  intangibles as defined by the intangible tax law of the state;

24  or pari-mutuel tickets sold or issued under the racing laws of

25  the state.

26         (35)  "Agent" means a person appointed by a principal

27  or authorized to act for the principal in a transaction

28  involving the sale of an item of tangible personal property.

29  The term also means a person appointed by a seller to

30  represent the seller before the states that are signatories to

31  the Streamlined Sales and Use Tax Agreement.

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 1         (36)  "Seller" means any person making sales, leases,

 2  or rentals of personal property or services.

 3         (37)  "Model 1 seller" means a seller that has selected

 4  a certified service provider as its agent to perform all the

 5  seller's sale and use tax functions other than the seller's

 6  obligation to remit tax on its own purchases.

 7         (38)  "Model 2 seller" means a seller that has selected

 8  a certified automated system to perform part of its sales and

 9  use tax functions, but retains responsibility for remitting

10  the tax.

11         (39)  "Model 3 seller" means a seller that has sales in

12  at least five member states, has total annual sales revenues

13  of at least $500 million, has a proprietary system that

14  calculates the amount of tax due each jurisdiction, and has

15  entered into a performance agreement with the member states

16  which establishes a tax performance standard for the seller.

17  As used in this section, a seller includes an affiliated group

18  of sellers using the same proprietary system.

19         (40)  "Certified service provider" means an agent

20  certified under the Streamlined Sales and Use Tax Agreement to

21  perform all of the seller's sales tax functions, other than

22  the seller's obligation to remit tax on its own purchases.

23         (41)  "Direct mail" means printed material delivered or

24  distributed by United States mail or other delivery service to

25  a mass audience or to addressees on a mailing list provided by

26  the purchaser or at the direction of the purchaser when the

27  cost of the items is not billed directly to the recipients.

28  The term includes tangible personal property supplied directly

29  or indirectly by the purchaser to the direct mail seller for

30  inclusion in the package containing the printed material. The

31  

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 1  term does not include multiple items of printed material

 2  delivered to a single address.

 3         (42)  "Prewritten computer software" means computer

 4  software, including prewritten upgrades, which is not designed

 5  and developed by the author or other creator to the

 6  specifications of a specific purchaser. The combining of two

 7  or more prewritten computer software programs or prewritten

 8  portions thereof does not cause the combination to be other

 9  than "prewritten computer software." The term includes

10  software designed and developed by the author or other creator

11  to the specifications of a specific purchaser when it is sold

12  to a person other than that purchaser. When a person modifies

13  or enhances computer software of which the person is not the

14  author or creator, the person is the author or creator only of

15  that person's modifications or enhancements. Prewritten

16  computer software, or a prewritten portion thereof, which is

17  modified or enhanced to any degree, when such modification or

18  enhancement is designed and developed to the specifications of

19  a specific purchaser, remains "prewritten computer software";

20  however, if there is a reasonable, separately stated charge or

21  an invoice or other statement of the price given to the

22  purchaser for such modification or enhancement, the

23  modification or enhancement does not constitute "prewritten

24  computer software."

25         (43)  "Delivery charges" means charges by the seller of

26  personal property or services for preparation and delivery to

27  a location designated by the purchaser of personal property or

28  services, including, but not limited to, transportation,

29  shipping, postage, handling, crating, and packing. The term

30  does not include the charges for delivery of "direct mail" as

31  defined by this section if the charges are separately stated

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 1  on an invoice or similar billing document given to the

 2  purchaser. If a shipment includes exempt property and taxable

 3  property, the seller must tax the percentage of the delivery

 4  charge allocated to the taxable property but does not have to

 5  tax the percentage allocated to the exempt property. The

 6  seller should allocate the delivery charge by using:

 7         (a)  A percentage based on the total sales prices of

 8  all property in the shipment; or

 9         (b)  A percentage based on the total weight of the

10  taxable property compared to the total weight of all property

11  in the shipment.

12         Section 2.  The amendment of the terms "lease," "let,"

13  and "rental" in section 212.02, Florida Statutes, made by this

14  act applies prospectively only, from January 1, 2006, and does

15  not apply retroactively to leases or rentals existing before

16  that date.

17         Section 3.  Subsection (6) of section 212.0306, Florida

18  Statutes, is amended to read:

19         212.0306  Local option food and beverage tax; procedure

20  for levying; authorized uses; administration.--

21         (6)  Any county levying a tax authorized by this

22  section must locally administer the tax using the powers and

23  duties enumerated for local administration of the tourist

24  development tax by s. 125.0104, 1992 Supplement to the Florida

25  Statutes 1991. The county's ordinance shall also provide for

26  brackets applicable to taxable transactions.

27         Section 4.  Paragraph (b) of subsection (1) of section

28  212.04, Florida Statutes, is amended to read:

29         212.04  Admissions tax; rate, procedure, enforcement.--

30         (1)

31  

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

 2  levied at the rate of 6 percent of sales price, or the actual

 3  value received from such admissions, which 6 percent shall be

 4  added to and collected with all such admissions from the

 5  purchaser thereof, and such tax shall be paid for the exercise

 6  of the privilege as defined in the preceding paragraph.  Each

 7  ticket must show on its face the actual sales price of the

 8  admission, or each dealer selling the admission must

 9  prominently display at the box office or other place where the

10  admission charge is made a notice disclosing the price of the

11  admission, and the tax shall be computed and collected on the

12  basis of the actual price of the admission charged by the

13  dealer.  The sale price or actual value of admission shall,

14  for the purpose of this chapter, be that price remaining after

15  deduction of federal taxes and state or locally imposed or

16  authorized seat surcharges, taxes, or fees, if any, imposed

17  upon such admission. The sale price or actual value does not

18  include separately stated ticket service charges that are

19  imposed by a facility ticket office or a ticketing service and

20  added to a separately stated, established ticket price. The

21  rate of tax on each admission shall be according to the

22  brackets established by s. 212.12(9).

23         Section 5.  Paragraphs (c) and (e) of subsection (1)

24  and subsection (4) of section 212.05, Florida Statutes, are

25  amended to read:

26         212.05  Sales, storage, use tax.--It is hereby declared

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

28  taxable privilege who engages in the business of selling

29  tangible personal property at retail in this state, including

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

31  furnishes any of the things or services taxable under this

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

 2  any item or article of tangible personal property as defined

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

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

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

 6  due and payable as follows:

 7         (c)  At the rate of 6 percent of the gross proceeds

 8  derived from the lease or rental of tangible personal

 9  property, as defined herein.; however, the following special

10  provisions apply to the lease or rental of motor vehicles:

11         1.  When a motor vehicle is leased or rented for a

12  period of less than 12 months:

13         a.  If the motor vehicle is rented in Florida, the

14  entire amount of such rental is taxable, even if the vehicle

15  is dropped off in another state.

16         b.  If the motor vehicle is rented in another state and

17  dropped off in Florida, the rental is exempt from Florida tax.

18         2.  Except as provided in subparagraph 3., for the

19  lease or rental of a motor vehicle for a period of not less

20  than 12 months, sales tax is due on the lease or rental

21  payments if the vehicle is registered in this state; provided,

22  however, that no tax shall be due if the taxpayer documents

23  use of the motor vehicle outside this state and tax is being

24  paid on the lease or rental payments in another state.

25         3.  The tax imposed by this chapter does not apply to

26  the lease or rental of a commercial motor vehicle as defined

27  in s. 316.003(66)(a) to one lessee or rentee for a period of

28  not less than 12 months when tax was paid on the purchase

29  price of such vehicle by the lessor. To the extent tax was

30  paid with respect to the purchase of such vehicle in another

31  state, territory of the United States, or the District of

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 1  Columbia, the Florida tax payable shall be reduced in

 2  accordance with the provisions of s. 212.06(7). This

 3  subparagraph shall only be available when the lease or rental

 4  of such property is an established business or part of an

 5  established business or the same is incidental or germane to

 6  such business.

 7         (e)1.  At the rate of 6 percent on charges for:

 8         a.  Prepaid calling arrangements. The tax on charges

 9  for prepaid calling arrangements shall be collected at the

10  time of sale and remitted by the selling dealer.

11         (I)  "Prepaid calling arrangement" means the separately

12  stated retail sale by advance payment of communications

13  services that consist exclusively of telephone calls

14  originated by using an access number, authorization code, or

15  other means that may be manually, electronically, or otherwise

16  entered and that are sold in predetermined units or dollars

17  whose number declines with use in a known amount.

18         (II)  The sale or recharge of the prepaid calling

19  arrangement is deemed to take place in accordance with s.

20  212.06(3)(d). In the case of a sale of a mobile communications

21  service that is a prepaid calling arrangement, the retail sale

22  may be sourced at If the sale or recharge of the prepaid

23  calling arrangement does not take place at the dealer's place

24  of business, it shall be deemed to take place at the

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

26  customer's address or the location associated with the

27  customer's mobile telephone number.

28         (III)  The sale or recharge of a prepaid calling

29  arrangement shall be treated as a sale of tangible personal

30  property for purposes of this chapter, whether or not a

31  tangible item evidencing such arrangement is furnished to the

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 1  purchaser, and such sale within this state subjects the

 2  selling dealer to the jurisdiction of this state for purposes

 3  of this subsection.

 4         b.  The installation of telecommunication and

 5  telegraphic equipment.

 6         c.  Electrical power or energy, except that the tax

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

 8         2.  The provisions of s. 212.17(3), regarding credit

 9  for tax paid on charges subsequently found to be worthless,

10  shall be equally applicable to any tax paid under the

11  provisions of this section on charges for prepaid calling

12  arrangements, telecommunication or telegraph services, or

13  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, sale, or recharge of prepaid calling arrangements or

18  upon the purchase or sale of telecommunication, television

19  system program, or telegraph service or electric power, which

20  tax is collected by the seller from the purchaser.

21         (4)  The tax imposed under pursuant to this chapter

22  shall be due and payable according to the applicable state and

23  local rate brackets set forth in s. 212.12(9) s. 212.12.

24         Section 6.  Subsection (6) of section 212.0506, Florida

25  Statutes, is amended to read:

26         212.0506  Taxation of service warranties.--

27         (6)  This tax shall be due and payable according to the

28  applicable state and local rate brackets set forth in s.

29  212.12(9) s. 212.12.

30         Section 7.  Section 212.054, Florida Statutes, is

31  amended to read:

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 1         212.054  Discretionary sales surtax; limitations,

 2  administration, and collection.--

 3         (1)  No general excise tax on sales shall be levied by

 4  the governing body of any county unless specifically

 5  authorized in s. 212.055. Any general excise tax on sales

 6  authorized pursuant to said section shall be administered and

 7  collected exclusively as provided in this section.

 8         (2)(a)  The tax imposed by the governing body of any

 9  county authorized to so levy pursuant to s. 212.055 shall be a

10  discretionary surtax on all transactions occurring in the

11  county which transactions are subject to the state tax imposed

12  on sales, use, services, rentals, admissions, and other

13  transactions by this chapter and communications services as

14  defined for purposes of chapter 202. The surtax, if levied,

15  shall be computed as the applicable rate or rates authorized

16  pursuant to s. 212.055 times the amount of taxable sales and

17  taxable purchases representing such transactions.  If the

18  surtax is levied on the sale of an item of tangible personal

19  property or on the sale of a service, the surtax shall be

20  computed by multiplying the rate imposed by the county within

21  which the sale occurs by the amount of the taxable sale. The

22  sale of an item of tangible personal property or the sale of a

23  service is not subject to the surtax if the property, the

24  service, or the tangible personal property representing the

25  service is delivered within a county that does not impose a

26  discretionary sales surtax.

27         (b)  However:

28         1.  The sales amount above $5,000 on any item of

29  tangible personal property which is a motor vehicle, aircraft,

30  boat, modular home, manufactured home, or mobile home shall

31  not be subject to the surtax. However, charges for prepaid

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 1  calling arrangements, as defined in s. 212.05(1)(e)1.a., shall

 2  be subject to the surtax. For purposes of administering the

 3  $5,000 limitation on an item of tangible personal property, if

 4  two or more of these taxable items of tangible personal

 5  property are sold to the same purchaser at the same time and,

 6  under generally accepted business practice or industry

 7  standards or usage, are normally sold in bulk or are items

 8  that, when assembled, comprise a working unit or part of a

 9  working unit, such items must be considered a single item for

10  purposes of the $5,000 limitation when supported by a charge

11  ticket, sales slip, invoice, or other tangible evidence of a

12  single sale or rental.

13         2.  In the case of utility services covering a period

14  starting before and ending after the effective date of the

15  surtax, the rate applies as follows:

16         a.  In the case of a rate adoption or increase, the new

17  rate applies to the first billing period starting on or after

18  the effective date of the surtax or increase.

19         b.  In the case of a rate decrease or termination, the

20  new rate applies to bills rendered on or after the effective

21  date of the rate change. billed on or after the effective date

22  of any such surtax, the entire amount of the charge for

23  utility services shall be subject to the surtax. In the case

24  of utility services billed after the last day the surtax is in

25  effect, the entire amount of the charge on said items shall

26  not be subject to the surtax.

27  

28  "Utility service," as used in this section, does not include

29  any communications services as defined in chapter 202.

30         3.  In the case of written contracts which are signed

31  prior to the effective date of any such surtax for the

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 1  construction of improvements to real property or for

 2  remodeling of existing structures, the surtax shall be paid by

 3  the contractor responsible for the performance of the

 4  contract.  However, the contractor may apply for one refund of

 5  any such surtax paid on materials necessary for the completion

 6  of the contract.  Any application for refund shall be made no

 7  later than 15 months following initial imposition of the

 8  surtax in that county.  The application for refund shall be in

 9  the manner prescribed by the department by rule.  A complete

10  application shall include proof of the written contract and of

11  payment of the surtax.  The application shall contain a sworn

12  statement, signed by the applicant or its representative,

13  attesting to the validity of the application.  The department

14  shall, within 30 days after approval of a complete

15  application, certify to the county information necessary for

16  issuance of a refund to the applicant. Counties are hereby

17  authorized to issue refunds for this purpose and shall set

18  aside from the proceeds of the surtax a sum sufficient to pay

19  any refund lawfully due.  Any person who fraudulently obtains

20  or attempts to obtain a refund pursuant to this subparagraph,

21  in addition to being liable for repayment of any refund

22  fraudulently obtained plus a mandatory penalty of 100 percent

23  of the refund, is guilty of a felony of the third degree,

24  punishable as provided in s. 775.082, s. 775.083, or s.

25  775.084.

26         4.  In the case of any vessel, railroad, or motor

27  vehicle common carrier entitled to partial exemption from tax

28  imposed under this chapter pursuant to s. 212.08(4), (8), or

29  (9), the basis for imposition of surtax shall be the same as

30  provided in s. 212.08 and the ratio shall be applied each

31  month to total purchases in this state of property qualified

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 1  for proration which is delivered or sold in the taxing county

 2  to establish the portion used and consumed in intracounty

 3  movement and subject to surtax.

 4         (3)  Except as otherwise provided in this section, a

 5  surtax applies to a retail sale, lease, or rental of tangible

 6  personal property, a digital good, or a service when, under s.

 7  212.06(3), the transaction occurs in a county that imposes a

 8  surtax under s. 212.055.

 9         (4)(3)  To determine whether a transaction occurs in a

10  county imposing a surtax, the following provisions apply For

11  the purpose of this section, a transaction shall be deemed to

12  have occurred in a county imposing the surtax when:

13         (a)1.  The retail sale of a modular or manufactured

14  home, not including a mobile home, occurs in the county to

15  which the house is delivered. The sale includes an item of

16  tangible personal property, a service, or tangible personal

17  property representing a service, and the item of tangible

18  personal property, the service, or the tangible personal

19  property representing the service is delivered within the

20  county.  If there is no reasonable evidence of delivery of a

21  service, the sale of a service is deemed to occur in the

22  county in which the purchaser accepts the bill of sale.

23         (b)2.  The retail sale, excluding a lease or rental, of

24  any motor vehicle that does not qualify as transportation

25  equipment, as defined in s. 212.06(3)(g), or the retail sale

26  of a The sale of any motor vehicle or mobile home of a class

27  or type that which is required to be registered in this state

28  or in any other state occurs shall be deemed to have occurred

29  only in the county identified from as the residential

30  residence address of the purchaser on the registration or

31  title document for the such property.

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 1         (c)  A lease or rental of real property occurs in the

 2  county in which the real property is located.

 3         (d)  A transient rental transaction occurs in the

 4  county in which the rental property is located.

 5         (e)(b)  Admission charged for an event occurs The event

 6  for which an admission is charged is located in the county in

 7  which the event is held.

 8         (f)  A transaction made from a coin-operated amusement

 9  or vending machine occurs in the county in which the machine

10  is located.

11         (g)  An original order to sell tangible personal

12  property taken by a florist occurs in the county in which the

13  florist taking the order is located.

14         (c)  The consumer of utility services is located in the

15  county.

16         (h)(d)1.  The retail sale, excluding the lease or

17  rental, of any aircraft that does not qualify as

18  transportation equipment, as defined in s. 212.06(3)(g), or of

19  any boat of a class or type that is required to be registered,

20  licensed, titled, or documented in this state or by the United

21  States Government occurs in the county to which the aircraft

22  or boat is delivered.

23         2.  The use user of any aircraft or boat of a class or

24  type that which is required to be registered, licensed,

25  titled, or documented in this state or by the United States

26  Government imported into the county for use, consumption,

27  distribution, or storage to be used or consumed occurs in the

28  county in which the user is located in the county.

29         3.2.  However, it shall be presumed that such items

30  used outside the taxing county for 6 months or longer before

31  

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 1  being imported into the county were not purchased for use in

 2  the county, except as provided in s. 212.06(8)(b).

 3         4.3.  This paragraph does not apply to the use or

 4  consumption of items upon which a like tax of equal or greater

 5  amount has been lawfully imposed and paid outside the county.

 6         (i)(e)  The purchase purchaser of any motor vehicle or

 7  mobile home of a class or type that which is required to be

 8  registered in this state occurs in the county identified from

 9  the residential address of the purchaser is a resident of the

10  taxing county as determined by the address appearing on or to

11  be reflected on the registration document for the such

12  property.

13         (j)(f)1.  The use, consumption, distribution, or

14  storage of a Any motor vehicle or mobile home of a class or

15  type that which is required to be registered in this state and

16  that is imported from another state occurs in the county to

17  which it is imported into the taxing county by a user residing

18  therein for the purpose of use, consumption, distribution, or

19  storage in the taxing county.

20         2.  However, it shall be presumed that such items used

21  outside the taxing county for 6 months or longer before being

22  imported into the county were not purchased for use in the

23  county.

24         (g)  The real property which is leased or rented is

25  located in the county.

26         (h)  The transient rental transaction occurs in the

27  county.

28         (i)  The delivery of any aircraft or boat of a class or

29  type which is required to be registered, licensed, titled, or

30  documented in this state or by the United States Government is

31  to a location in the county. However, this paragraph does not

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 1  apply to the use or consumption of items upon which a like tax

 2  of equal or greater amount has been lawfully imposed and paid

 3  outside the county.

 4         (k)(j)  A transaction occurs in a taxing county when

 5  the dealer owing a use tax on purchases or leases is located

 6  in the county.

 7         (k)  The delivery of tangible personal property other

 8  than that described in paragraph (d), paragraph (e), or

 9  paragraph (f) is made to a location outside the county, but

10  the property is brought into the county within 6 months after

11  delivery, in which event, the owner must pay the surtax as a

12  use tax.

13         (l)  The coin-operated amusement or vending machine is

14  located in the county.

15         (m)  The florist taking the original order to sell

16  tangible personal property is located in the county,

17  notwithstanding any other provision of this section.

18         (5)(4)(a)  The department shall administer, collect,

19  and enforce the tax authorized under s. 212.055 pursuant to

20  the same procedures used in the administration, collection,

21  and enforcement of the general state sales tax imposed under

22  the provisions of this chapter, except as provided in this

23  section.  The provisions of this chapter regarding interest

24  and penalties on delinquent taxes shall apply to the surtax.

25  Discretionary sales surtaxes shall not be included in the

26  computation of estimated taxes pursuant to s. 212.11.

27  Notwithstanding any other provision of law, a dealer need not

28  separately state the amount of the surtax on the charge

29  ticket, sales slip, invoice, or other tangible evidence of

30  sale.  For the purposes of this section and s. 212.055, the

31  "proceeds" of any surtax means all funds collected and

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 1  received by the department pursuant to a specific

 2  authorization and levy under s. 212.055, including any

 3  interest and penalties on delinquent surtaxes.

 4         (b)  The proceeds of a discretionary sales surtax

 5  collected by the selling dealer located in a county which

 6  imposes the surtax shall be returned, less the cost of

 7  administration, to the county where the selling dealer is

 8  located. The proceeds shall be transferred to the

 9  Discretionary Sales Surtax Clearing Trust Fund. A separate

10  account shall be established in such trust fund for each

11  county imposing a discretionary surtax.  The amount deducted

12  for the costs of administration shall not exceed 3 percent of

13  the total revenue generated for all counties levying a surtax

14  authorized in s. 212.055.  The amount deducted for the costs

15  of administration shall be used only for those costs which are

16  solely and directly attributable to the surtax.  The total

17  cost of administration shall be prorated among those counties

18  levying the surtax on the basis of the amount collected for a

19  particular county to the total amount collected for all

20  counties.  No later than March 1 of each year, the department

21  shall submit a written report which details the expenses and

22  amounts deducted for the costs of administration to the

23  President of the Senate, the Speaker of the House of

24  Representatives, and the governing authority of each county

25  levying a surtax.  The department shall distribute the moneys

26  in the trust fund each month to the appropriate counties,

27  unless otherwise provided in s. 212.055.

28         (c)1.  Any dealer located in a county that does not

29  impose a discretionary sales surtax but who collects the

30  surtax due to sales of tangible personal property or services

31  delivered outside the county shall remit monthly the proceeds

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 1  of the surtax to the department to be deposited into an

 2  account in the Discretionary Sales Surtax Clearing Trust Fund

 3  which is separate from the county surtax collection accounts.

 4  The department shall distribute funds in this account using a

 5  distribution factor determined for each county that levies a

 6  surtax and multiplied by the amount of funds in the account

 7  and available for distribution.  The distribution factor for

 8  each county equals the product of:

 9         a.  The county's latest official population determined

10  pursuant to s. 186.901;

11         b.  The county's rate of surtax; and

12         c.  The number of months the county has levied a surtax

13  during the most recent distribution period;

14  

15  divided by the sum of all such products of the counties

16  levying the surtax during the most recent distribution period.

17         2.  The department shall compute distribution factors

18  for eligible counties once each quarter and make appropriate

19  quarterly distributions.

20         3.  A county that fails to timely provide the

21  information required by this section to the department

22  authorizes the department, by such action, to use the best

23  information available to it in distributing surtax revenues to

24  the county.  If this information is unavailable to the

25  department, the department may partially or entirely

26  disqualify the county from receiving surtax revenues under

27  this paragraph.  A county that fails to provide timely

28  information waives its right to challenge the department's

29  determination of the county's share, if any, of revenues

30  provided under this paragraph.

31  

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 1         (5)  No discretionary sales surtax or increase or

 2  decrease in the rate of any discretionary sales surtax shall

 3  take effect on a date other than January 1.  No discretionary

 4  sales surtax shall terminate on a day other than December 31.

 5         (6)  The governing body of any county levying a

 6  discretionary sales surtax shall enact an ordinance levying

 7  the surtax in accordance with the procedures described in s.

 8  125.66(2).

 9         (7)(a)  Any adoption, repeal, or rate change of the

10  surtax by the governing body of any county levying a

11  discretionary sales surtax or the school board of any county

12  levying the school capital outlay surtax authorized by s.

13  212.055(6) is effective on April 1. A county or school board

14  adopting, repealing, or changing the rate of such tax shall

15  notify the department within 10 days after final adoption by

16  ordinance or referendum of an adoption, repeal imposition,

17  termination, or rate change of the surtax, but no later than

18  November 16 immediately preceding such April 1 November 16

19  prior to the effective date. The notice must specify the time

20  period during which the surtax will be in effect and the rate

21  and must include a copy of the ordinance and such other

22  information as the department requires by rule. Failure to

23  timely provide such notification to the department shall

24  result in the delay of the effective date for a period of 1

25  year.

26         (b)  In addition to the notification required by

27  paragraph (a), the governing body of any county proposing to

28  levy a discretionary sales surtax or the school board of any

29  county proposing to levy the school capital outlay surtax

30  authorized by s. 212.055(6) shall notify the department by

31  October 1 if the referendum or consideration of the ordinance

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 1  that would result in imposition, termination, or rate change

 2  of the surtax is scheduled to occur on or after October 1 of

 3  that year. Failure to timely provide such notification to the

 4  department shall result in the delay of the effective date for

 5  a period of 1 year.

 6         (c)  The department shall provide notice of the

 7  adoption, repeal, or change to affected sellers by December 1

 8  immediately preceding the April 1 effective date.

 9         (d)  Notwithstanding any ordinance provision to the

10  contrary regarding the termination date of a surtax, a surtax

11  may be terminated only on an April 1st. A surtax imposed

12  before January 1, 2006, for which an ordinance provides a

13  different termination date shall terminate on the April 1st

14  following the termination date established in the ordinance.

15         (8)  With respect to any motor vehicle or mobile home

16  of a class or type which is required to be registered in this

17  state, the tax due on a transaction occurring in the taxing

18  county as herein provided shall be collected from the

19  purchaser or user incident to the titling and registration of

20  such property, irrespective of whether such titling or

21  registration occurs in the taxing county.

22         (9)  For the purpose of the state providing and

23  maintaining a database of all sales and use tax rates for all

24  local taxing jurisdictions in accordance with the Streamlined

25  Sales and Use Tax Agreement under s. 213.256, s. 202.22(2)

26  applies.

27         (a)  A seller or certified service provider who

28  collects and remits the state and local tax imposed by this

29  chapter shall be held harmless from tax, interest, and

30  penalties due solely as a result of relying on erroneous data

31  on tax rates, boundaries, or taxing jurisdiction assignments

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 1  provided by the state if the seller or certified service

 2  provider exercises due diligence in applying one or more of

 3  the following methods for determining the taxing jurisdiction

 4  and tax rate for a transaction:

 5         1.  Employing an electronic database provided by the

 6  department under s. 202.22(2); or

 7         2.  Employing a database that has been approved by the

 8  governing board and was developed by a seller or certified

 9  service provider.

10         (b)  If a seller or certified service provider does not

11  use one of the methods specified in paragraph (a), the seller

12  or certified service provider may be held liable to the

13  department for tax, interest, and penalties that are due for

14  charging and collecting the incorrect amount of tax.

15         Section 8.  Present subsections (3) through (16) of

16  section 212.06, Florida Statutes, are renumbered as

17  subsections (4) through (17), respectively, a new subsection

18  (3) is added to that section, and present subsection (3) of

19  that section is amended to read:

20         212.06  Sales, storage, use tax; collectible from

21  dealers; "dealer" defined; dealers to collect from purchasers;

22  legislative intent as to scope of tax.--

23         (3)  This subsection must be used to determine the

24  location where a transaction occurs for purposes of applying

25  the tax imposed by this chapter.

26         (a)  For purposes of this subsection, the terms

27  "receive" and "receipt" mean:

28         1.  Taking possession of tangible personal property;

29         2.  Making first use of services; or

30         3.  Taking possession or making first use of digital

31  goods, whichever occurs first.

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 1  

 2  The terms do not include possession by a shipping company on

 3  behalf of the purchaser.

 4         (b)  For purposes of this subsection, the term

 5  "product" means tangible personal property, a digital good, or

 6  a service.

 7         (c)  This section does not apply to the sales or use

 8  taxes levied on:

 9         1.  The retail sale or transfer of a boat, modular

10  home, manufactured home, or mobile home.

11         2.  The retail sale, excluding a lease or rental, of a

12  motor vehicle or aircraft that does not qualify as

13  transportation equipment, as defined in paragraph (g). The

14  lease or rental of these items shall be deemed to have

15  occurred in accordance with paragraph (f).

16         3.  The retail sale of tangible personal property by a

17  florist.

18  

19  Such retail sales are deemed to take place at the location

20  determined under s. 212.054(4).

21         (d)  The retail sale of a product, excluding a lease or

22  rental, shall be deemed to take place:

23         1.  When the product is received by the purchaser at a

24  business location of the seller, at that business location.

25         2.  When the product is not received by the purchaser

26  at a business location of the seller, at the location where

27  receipt by the purchaser, or the purchaser's donee, designated

28  as such by the purchaser, occurs, including the location

29  indicated by instructions for delivery to the purchaser or

30  donee, known to the seller.

31  

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 1         3.  When subparagraphs 1. and 2. do not apply, at the

 2  location indicated by an address for the purchaser which is

 3  available from the business records of the seller which are

 4  maintained in the ordinary course of the seller's business,

 5  when use of this address does not constitute bad faith.

 6         4.  When subparagraphs 1., 2., and 3. do not apply, at

 7  the location indicated by an address for the purchaser

 8  obtained during the consummation of the sale, including the

 9  address of a purchaser's payment instrument, if no other

10  address is available, when use of this address does not

11  constitute bad faith.

12         5.  When subparagraphs 1., 2., 3., and 4. do not apply,

13  including when the seller is without sufficient information to

14  apply the previous paragraphs, the address from which tangible

15  personal property was shipped, from which the digital good or

16  the computer software delivered electronically was first

17  available for transmission by the seller, or from which the

18  service was provided, disregarding any location that merely

19  provided the digital transfer of the product sold.

20         (e)  The lease or rental of tangible personal property,

21  other than property identified in paragraphs (f) and (g),

22  shall be deemed to have occurred as follows:

23         1.  For a lease or rental that requires recurring

24  periodic payments, the first periodic payment is deemed to

25  take place in accordance with paragraph (d), notwithstanding

26  the exclusion of lease or rental in paragraph (d). Subsequent

27  periodic payments are deemed to have occurred at the primary

28  property location for each period covered by the payment. The

29  primary property location is determined by an address for the

30  property provided by the lessee which is available to the

31  lessor from its records maintained in the ordinary course of

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 1  business, when use of this address does not constitute bad

 2  faith. The property location is not altered by intermittent

 3  use of the property at different locations, such as use of

 4  business property that accompanies employees on business trips

 5  and service calls.

 6         2.  For a lease or rental that does not require

 7  recurring periodic payments, the payment is deemed to take

 8  place in accordance with paragraph (d), notwithstanding the

 9  exclusion of a lease or rental in paragraph (d).

10         3.  This paragraph does not affect the imposition or

11  computation of sales or use tax on leases or rentals based on

12  a lump sum or accelerated basis or on the acquisition of

13  property for lease.

14         (f)  The lease or rental of a motor vehicle or aircraft

15  that does not qualify as transportation equipment, as defined

16  in paragraph (g), shall be sourced as follows:

17         1.  For a lease or rental that requires recurring

18  periodic payments, each periodic payment is deemed to take

19  place at the primary property location. The primary property

20  location shall be determined by an address for the property

21  provided by the lessee which is available to the lessor from

22  its records maintained in the ordinary course of business,

23  when use of this address does not constitute bad faith. This

24  location may not be altered by intermittent use at different

25  locations.

26         2.  For a lease or rental that does not require

27  recurring periodic payments, the payment is deemed to take

28  place in accordance with paragraph (d), notwithstanding the

29  exclusion of a lease or rental in paragraph (d).

30         3.  This paragraph does not affect the imposition or

31  computation of sales or use tax on leases or rentals based on

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 1  a lump sum or accelerated basis or on the acquisition of

 2  property for lease.

 3         (g)  The retail sale, including lease or rental, of

 4  transportation equipment shall be deemed to take place in

 5  accordance with paragraph (d), notwithstanding the exclusion

 6  of a lease or rental in paragraph (d). The term

 7  "transportation equipment" means:

 8         1.  Locomotives and rail cars that are used for the

 9  carriage of persons or property in interstate commerce;

10         2.  Trucks and truck tractors with a Gross Vehicle

11  Weight Rating (GVWR) of 10,001 pounds or greater, trailers,

12  semitrailers, or passenger buses that are registered through

13  the International Registration Plan and operated under

14  authority of a carrier authorized and certificated by the

15  United States Department of Transportation or another federal

16  authority to engage in the carriage of persons or property in

17  interstate commerce;

18         3.  Aircraft that are operated by air carriers

19  authorized and certificated by the United States Department of

20  Transportation or another federal or a foreign authority to

21  engage in the carriage of persons or property in interstate or

22  foreign commerce; or

23         4.  Containers designed for use on and component parts

24  attached or secured on the items set forth in subparagraphs 1.

25  through 3.

26         (4)(3)(a)  Except as provided in paragraphs (a) and

27  paragraph (b), every dealer making retail sales, whether

28  within or outside the state, of tangible personal property for

29  distribution, storage, or use or other consumption, in this

30  state, shall, at the time of making sales, collect the tax

31  imposed by this chapter from the purchaser.

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 1         (a)  Notwithstanding subsection (3), a business

 2  purchaser that is not a holder of a direct-pay permit and that

 3  knows at the time of purchase of a digital good, computer

 4  software delivered electronically, or a service that the

 5  digital good, computer software delivered electronically, or

 6  service will be concurrently available for use in more than

 7  one jurisdiction shall deliver to the dealer a multiple points

 8  of use exemption form (MPU exemption form) at the time of

 9  purchase.

10         1.  Upon receipt of the MPU exemption form, the seller

11  is relieved of all obligation to collect, pay, or remit the

12  applicable tax, and the purchaser is obligated to collect,

13  pay, or remit the applicable tax on a direct-pay basis.

14         2.  A purchaser delivering the MPU exemption form may

15  use any reasonable, but consistent and uniform, method of

16  apportionment which is supported by the purchaser's business

17  records as they exist at the time of the consummation of the

18  sale.

19         3.  The MPU exemption form remains in effect for all

20  future sales by the seller to the purchaser, except as to the

21  subsequent sale's specific apportionment that is governed by

22  the principle of subparagraph 2. and the facts existing at the

23  time of the sale, until the MPU exemption form is revoked in

24  writing.

25         4.  A holder of a direct-pay permit is not required to

26  deliver an MPU exemption form to the seller. A direct-pay

27  permitholder shall follow the provisions of subparagraph 2. in

28  apportioning the tax due on a digital good or a service that

29  will be concurrently available for use in more than one

30  jurisdiction.

31  

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 1         (b)1.  Notwithstanding subsection (3), a purchaser of

 2  direct mail which is not a holder of a direct-pay permit shall

 3  provide to the seller in conjunction with the purchase a

 4  direct mail form or information to show the jurisdictions to

 5  which the direct mail is delivered to recipients. Upon receipt

 6  of the direct mail form, the seller is relieved of all

 7  obligations to collect, pay, or remit the applicable tax, and

 8  the purchaser is obligated to pay or remit the applicable tax

 9  on a direct-pay basis. A direct mail form remains in effect

10  for all future sales of direct mail by the seller to the

11  purchaser until it is revoked in writing.

12         2.  Upon receipt of information from the purchaser

13  showing the jurisdictions to which the direct mail is

14  delivered to recipients, the seller shall collect the tax

15  according to the delivery information provided by the

16  purchaser. In the absence of bad faith, the seller is relieved

17  of any further obligation to collect tax on any transaction

18  for which the seller has collected tax pursuant to the

19  delivery information provided by the purchaser.

20         3.  If the purchaser of direct mail does not have a

21  direct-pay permit and does not provide the seller with a

22  direct mail form or delivery information as required by

23  subparagraph 1., the seller shall collect the tax according to

24  subparagraph (3)(d)5. This paragraph does not limit a

25  purchaser's obligation for sales or use tax to any state to

26  which the direct mail is delivered.

27         4.  If a purchaser of direct mail provides the seller

28  with documentation of direct-pay authority, the purchaser is

29  not required to provide a direct mail form or delivery

30  information to the seller. A purchaser of printed materials

31  shall have sole responsibility for the taxes imposed by this

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 1  chapter on those materials when the printer of the materials

 2  delivers them to the United States Postal Service for mailing

 3  to persons other than the purchaser located within and outside

 4  this state. Printers of materials delivered by mail to persons

 5  other than the purchaser located within and outside this state

 6  shall have no obligation or responsibility for the payment or

 7  collection of any taxes imposed under this chapter on those

 8  materials. However, printers are obligated to collect the

 9  taxes imposed by this chapter on printed materials when all,

10  or substantially all, of the materials will be mailed to

11  persons located within this state. For purposes of the

12  printer's tax collection obligation, there is a rebuttable

13  presumption that all materials printed at a facility are

14  mailed to persons located within the same state as that in

15  which the facility is located.  A certificate provided by the

16  purchaser to the printer concerning the delivery of the

17  printed materials for that purchase or all purchases shall be

18  sufficient for purposes of rebutting the presumption created

19  herein.

20         5.2.  The Department of Revenue is authorized to adopt

21  rules and forms to implement the provisions of this paragraph.

22         Section 9.  Subsections (1), (2), and (3) of section

23  212.08, Florida Statutes, are amended to read:

24         212.08  Sales, rental, use, consumption, distribution,

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

26  the rental, the use, the consumption, the distribution, and

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

28  following are hereby specifically exempt from the tax imposed

29  by this chapter.

30         (1)  EXEMPTIONS; GENERAL GROCERIES.--

31  

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 1         (a)  Food and food ingredients products for human

 2  consumption are exempt from the tax imposed by this chapter.

 3         (b)  For the purpose of this chapter, as used in this

 4  subsection, the term "food and food ingredients products"

 5  means substances, whether in liquid, concentrated, solid,

 6  frozen, dried, or dehydrated form, which are sold for

 7  ingestion or chewing by humans and are consumed for their

 8  taste or nutritional value edible commodities, whether

 9  processed, cooked, raw, canned, or in any other form, which

10  are generally regarded as food. This includes, but is not

11  limited to, all of the following:

12         1.  Cereals and cereal products, baked goods,

13  oleomargarine, meat and meat products, fish and seafood

14  products, frozen foods and dinners, poultry, eggs and egg

15  products, vegetables and vegetable products, fruit and fruit

16  products, spices, salt, sugar and sugar products, milk and

17  dairy products, and products intended to be mixed with milk.

18         2.  Natural fruit or vegetable juices or their

19  concentrates or reconstituted natural concentrated fruit or

20  vegetable juices, whether frozen or unfrozen, dehydrated,

21  powdered, granulated, sweetened or unsweetened, seasoned with

22  salt or spice, or unseasoned; coffee, coffee substitutes, or

23  cocoa; and tea, unless it is sold in a liquid form.

24         1.3.  Bakery products sold by bakeries, pastry shops,

25  or like establishments, if sold without eating utensils.

26  Bakery products for purposes of this subsection include bread,

27  rolls, buns, biscuits, bagels, croissants, pastries,

28  doughnuts, danish, cakes, tortes, pies, tarts, muffins, bars,

29  cookies, and tortillas that do not have eating facilities.

30         2.  Dietary supplements. The term "dietary supplements"

31  means any product, other than tobacco, intended to supplement

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 1  the diet which contains one or more of the following dietary

 2  ingredients: a vitamin; a mineral; an herb or other botanical;

 3  an amino acid; a dietary substance for use by humans to

 4  supplement the diet by increasing the total dietary intake; or

 5  a concentrate, metabolite, constituent, extract, or

 6  combination of any ingredient described in this subparagraph

 7  which is intended for ingestion in tablet, capsule, powder,

 8  softgel, gelcap, or liquid form or, if not intended for

 9  ingestion in such a form, is not represented as conventional

10  food and is not represented for use as a sole item of a meal

11  or of the diet, and which is required to be labeled as a

12  dietary supplement, identifiable by the "supplemental facts"

13  box found on the label and as required pursuant to 21 C.F.R.

14  s. 101.36.

15         (c)  The exemption provided by this subsection does not

16  apply:

17         1.  When the food products are sold as meals for

18  consumption on or off the premises of the dealer.

19         2.  When the food products are furnished, prepared, or

20  served for consumption at tables, chairs, or counters or from

21  trays, glasses, dishes, or other tableware, whether provided

22  by the dealer or by a person with whom the dealer contracts to

23  furnish, prepare, or serve food products to others.

24         3.  When the food products are ordinarily sold for

25  immediate consumption on the seller's premises or near a

26  location at which parking facilities are provided primarily

27  for the use of patrons in consuming the products purchased at

28  the location, even though such products are sold on a "take

29  out" or "to go" order and are actually packaged or wrapped and

30  taken from the premises of the dealer.

31  

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 1         4.  To sandwiches sold ready for immediate consumption

 2  on or off the seller's premises.

 3         5.  When the food products are sold ready for immediate

 4  consumption within a place, the entrance to which is subject

 5  to an admission charge.

 6         1.6.  When the food and food ingredients products are

 7  sold as hot prepared food products. As used in this

 8  subparagraph, the term "prepared food" means food sold in a

 9  heated state or heated by the seller; two or more food

10  ingredients mixed or combined by the seller for sale as a

11  single item; or food sold with eating utensils provided by the

12  seller, including plates, knives, forks, spoons, glasses,

13  cups, napkins, or straws. A plate does not include a container

14  or packaging used to transport the food. Prepared food does

15  not include food that is only cut, repackaged, or pasteurized

16  by the seller and eggs, fish, meat, poultry, and foods

17  containing these raw animal foods requiring cooking by the

18  consumer as recommended by the Food and Drug Administration in

19  chapter 3, part 401.11 of its food code so as to prevent

20  food-borne illnesses. Prepared food, for purposes of this

21  subparagraph, includes sandwiches sold for immediate

22  consumption and a combination of hot and cold food items or

23  components where a single price has been established for the

24  combination and the food products are sold in such

25  combination, such as a meal; a specialty dish or serving; a

26  sandwich or pizza; an ice cream cone, sundae, or banana split;

27  or food sold in an unheated state by weight or volume as a

28  single item, including cold components or side items.

29         2.7.  To soft drinks, which include, but are not

30  limited to, any nonalcoholic beverage, any preparation or

31  beverage commonly referred to as a "soft drink," or any

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 1  noncarbonated drink made from milk derivatives or tea, when

 2  sold in cans or similar containers. The term "soft drinks"

 3  means nonalcoholic beverages that contain natural or

 4  artificial sweeteners. Soft drinks do not include beverages

 5  that contain milk or milk products, soy, rice, or similar milk

 6  substitutes, or greater than 50 percent of vegetable or fruit

 7  juice by volume.

 8         8.  To ice cream, frozen yogurt, and similar frozen

 9  dairy or nondairy products in cones, small cups, or pints,

10  popsicles, frozen fruit bars, or other novelty items, whether

11  or not sold separately.

12         9.  To food prepared, whether on or off the premises,

13  and sold for immediate consumption. This does not apply to

14  food prepared off the premises and sold in the original sealed

15  container, or the slicing of products into smaller portions.

16         3.10.  When the food and food ingredients products are

17  sold through a vending machine, pushcart, motor vehicle, or

18  any other form of vehicle.

19         4.11.  To candy and any similar product regarded as

20  candy or confection, based on its normal use, as indicated on

21  the label or advertising thereof. The term "candy" means a

22  preparation of sugar, honey, or other natural or artificial

23  sweeteners in combination with chocolate, fruits, nuts, or

24  other ingredients or flavorings in the form of bars, drops, or

25  pieces. Candy does not include any preparation that contains

26  flour and does not require refrigeration.

27         5.  To tobacco.

28         12.  To bakery products sold by bakeries, pastry shops,

29  or like establishments that have eating facilities, except

30  when sold for consumption off the seller's premises.

31  

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 1         13.  When food products are served, prepared, or sold

 2  in or by restaurants, lunch counters, cafeterias, hotels,

 3  taverns, or other like places of business.

 4         (d)  As used in this subsection, the term:

 5         1.  "For consumption off the seller's premises" means

 6  that the food or drink is intended by the customer to be

 7  consumed at a place away from the dealer's premises.

 8         2.  "For consumption on the seller's premises" means

 9  that the food or drink sold may be immediately consumed on the

10  premises where the dealer conducts his or her business. In

11  determining whether an item of food is sold for immediate

12  consumption, there shall be considered the customary

13  consumption practices prevailing at the selling facility.

14         3.  "Premises" shall be construed broadly, and means,

15  but is not limited to, the lobby, aisle, or auditorium of a

16  theater; the seating, aisle, or parking area of an arena,

17  rink, or stadium; or the parking area of a drive-in or outdoor

18  theater. The premises of a caterer with respect to catered

19  meals or beverages shall be the place where such meals or

20  beverages are served.

21         4.  "Hot Prepared food products" means those products,

22  items, or components which have been prepared for sale in a

23  heated condition and which are sold at any temperature that is

24  higher than the air temperature of the room or place where

25  they are sold. "Hot prepared food products," for the purposes

26  of this subsection, includes a combination of hot and cold

27  food items or components where a single price has been

28  established for the combination and the food products are sold

29  in such combination, such as a hot meal, a hot specialty dish

30  or serving, or a hot sandwich or hot pizza, including cold

31  components or side items.

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 1         (d)(e)1.  Food or drinks not exempt under paragraphs

 2  (a), (b), and (c), and (d) shall be exempt, notwithstanding

 3  those paragraphs, when purchased with food coupons or Special

 4  Supplemental Food Program for Women, Infants, and Children

 5  vouchers issued under authority of federal law.

 6         2.  This paragraph is effective only while federal law

 7  prohibits a state's participation in the federal food coupon

 8  program or Special Supplemental Food Program for Women,

 9  Infants, and Children if there is an official determination

10  that state or local sales taxes are collected within that

11  state on purchases of food or drinks with such coupons.

12         3.  This paragraph does shall not apply to any food or

13  drinks on which federal law permits shall permit sales taxes

14  without penalty, such as termination of the state's

15  participation.

16         (e)  Dietary supplements that are sold as prepared food

17  are not exempt.

18         (2)  EXEMPTIONS; MEDICAL.--

19         (a)  There shall be exempt from the tax imposed by this

20  chapter:

21         1.  Any drug;

22         2.  Durable medical equipment, mobility enhancing

23  equipment, or prosthetic device any medical products and

24  supplies or medicine dispensed according to an individual

25  prescription or prescriptions written by a prescriber

26  authorized by law to prescribe medicinal drugs;

27         3.  Hypodermic needles; hypodermic syringes;

28         4.  Chemical compounds and test kits used for the

29  diagnosis or treatment of human disease, illness, or injury

30  and intended for one-time use;

31  

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 1         5.  Over-the-counter drugs and common household

 2  remedies recommended and generally sold for internal or

 3  external use in the cure, mitigation, treatment, or prevention

 4  of illness or disease in human beings, but not including

 5  grooming and hygiene products;

 6         6.  Bandaids, gauze, bandages, adhesive tape;

 7         7.  Hearing aids;

 8         8.  Dental prosthesis; or

 9         9.  Funerals.

10  

11  Funeral directors shall pay tax on all tangible personal

12  property used by them in their business. cosmetics or toilet

13  articles, notwithstanding the presence of medicinal

14  ingredients therein, according to a list prescribed and

15  approved by the Department of Health, which list shall be

16  certified to the Department of Revenue from time to time and

17  included in the rules promulgated by the Department of

18  Revenue. There shall also be exempt from the tax imposed by

19  this chapter artificial eyes and limbs; orthopedic shoes;

20  prescription eyeglasses and items incidental thereto or which

21  become a part thereof; dentures; hearing aids; crutches;

22  prosthetic and orthopedic appliances; and funerals. In

23  addition, any items intended for one-time use which transfer

24  essential optical characteristics to contact lenses are shall

25  be exempt from the tax imposed by this chapter; however, this

26  exemption applies shall apply only after $100,000 of the tax

27  imposed by this chapter on such items has been paid in any

28  calendar year by a taxpayer who claims the exemption in such

29  year. Funeral directors shall pay tax on all tangible personal

30  property used by them in their business.

31         (b)  For the purposes of this subsection, the term:

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 1         1.  "Drug" means a compound, substance, or preparation,

 2  and any component of a compound, substance, or preparation,

 3  other than food and food ingredients, dietary supplements, and

 4  alcoholic beverages, which is:

 5         a.  Recognized in the official United States

 6  Pharmacopoeia, official Homeopathic Pharmacopoeia of the

 7  United States, or official National Formulary, or the

 8  supplement to any of them;

 9         b.  Intended for use in the diagnosis, cure,

10  mitigation, treatment, or prevention of disease; or

11         c.  Intended to affect the structure or any function of

12  the body.

13         2.  "Durable medical equipment" means equipment,

14  including repair and replacement parts to such equipment, but

15  excluding mobility-enhancing equipment, which can withstand

16  repeated use, is primarily and customarily used to serve a

17  medical purpose, generally is not useful to a person in the

18  absence of illness or injury, and is not worn on or in the

19  body.

20         3.  "Mobility-enhancing equipment" means equipment,

21  including repair and replacement parts to such equipment, but

22  excluding durable medical equipment, which:

23         a.  Is primarily and customarily used to provide or

24  increase the ability to move from one place to another and

25  which is appropriate for use either in a home or a motor

26  vehicle;

27         b.  Is not generally used by persons with normal

28  mobility; and

29         c.  Does not include any motor vehicle or any equipment

30  on a motor vehicle normally provided by a motor vehicle

31  manufacturer.

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 1         4.  "Prosthetic device" means a replacement,

 2  corrective, or supportive device, including repair or

 3  replacement parts to such equipment, other than a hearing aid

 4  or a dental prosthesis, which is worn on or in the body to:

 5         a.  Artificially replace a missing portion of the body;

 6         b.  Prevent or correct physical deformity or

 7  malfunction; or

 8         c.  Support a weak or deformed portion of the body.

 9         5.  "Grooming and hygiene products" mean soaps and

10  cleaning solutions, shampoo, toothpaste, mouthwash,

11  antiperspirants, and suntan lotions and screens, regardless of

12  whether the items meet the definition of an over-the-counter

13  drug.

14         6.  "Over-the-counter drug" means a drug the packaging

15  for which contains a label that identifies the product as a

16  drug as required by 21 C.F.R. s. 201.66. The over-the-counter

17  drug label includes a drug facts panel or a statement of the

18  active ingredients, with a list of those ingredients contained

19  in the compound, substance, or preparation. "Prosthetic and

20  orthopedic appliances" means any apparatus, instrument,

21  device, or equipment used to replace or substitute for any

22  missing part of the body, to alleviate the malfunction of any

23  part of the body, or to assist any disabled person in leading

24  a normal life by facilitating such person's mobility.  Such

25  apparatus, instrument, device, or equipment shall be exempted

26  according to an individual prescription or prescriptions

27  written by a physician licensed under chapter 458, chapter

28  459, chapter 460, chapter 461, or chapter 466, or according to

29  a list prescribed and approved by the Department of Health,

30  which list shall be certified to the Department of Revenue

31  

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 1  from time to time and included in the rules promulgated by the

 2  Department of Revenue.

 3         2.  "Cosmetics" means articles intended to be rubbed,

 4  poured, sprinkled, or sprayed on, introduced into, or

 5  otherwise applied to the human body for cleansing,

 6  beautifying, promoting attractiveness, or altering the

 7  appearance and also means articles intended for use as a

 8  compound of any such articles, including, but not limited to,

 9  cold creams, suntan lotions, makeup, and body lotions.

10         3.  "Toilet articles" means any article advertised or

11  held out for sale for grooming purposes and those articles

12  that are customarily used for grooming purposes, regardless of

13  the name by which they may be known, including, but not

14  limited to, soap, toothpaste, hair spray, shaving products,

15  colognes, perfumes, shampoo, deodorant, and mouthwash.

16         7.4.  "Prescription" means an order, formula, or recipe

17  issued in any form of oral, written, electronic, or other

18  means of transmission by a duly licensed practitioner

19  authorized by chapter 458, chapter 459, chapter 460, chapter

20  461, or chapter 466. The term also includes an orally

21  transmitted order by the lawfully designated agent of such

22  practitioner. The term also includes an order written or

23  transmitted by a practitioner licensed to practice in a

24  jurisdiction other than this state, but only if the pharmacist

25  called upon to dispense the order determines, in the exercise

26  of his or her professional judgment, that the order is valid

27  and necessary for the treatment of a chronic or recurrent

28  illness. includes any order for drugs or medicinal supplies

29  written or transmitted by any means of communication by a duly

30  licensed practitioner authorized by the laws of the state to

31  prescribe such drugs or medicinal supplies and intended to be

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 1  dispensed by a pharmacist. The term also includes an orally

 2  transmitted order by the lawfully designated agent of such

 3  practitioner. The term also includes an order written or

 4  transmitted by a practitioner licensed to practice in a

 5  jurisdiction other than this state, but only if the pharmacist

 6  called upon to dispense such order determines, in the exercise

 7  of his or her professional judgment, that the order is valid

 8  and necessary for the treatment of a chronic or recurrent

 9  illness. The term also includes a pharmacist's order for a

10  product selected from the formulary created pursuant to s.

11  465.186. A prescription may be retained in written form, or

12  the pharmacist may cause it to be recorded in a data

13  processing system, provided that such order can be produced in

14  printed form upon lawful request.

15         (c)  Chlorine is shall not be exempt from the tax

16  imposed by this chapter when used for the treatment of water

17  in swimming pools.

18         (d)  Lithotripters are exempt.

19         (d)(e)  Human organs are exempt.

20         (f)  Sales of drugs to or by physicians, dentists,

21  veterinarians, and hospitals in connection with medical

22  treatment are exempt.

23         (g)  Medical products and supplies used in the cure,

24  mitigation, alleviation, prevention, or treatment of injury,

25  disease, or incapacity which are temporarily or permanently

26  incorporated into a patient or client by a practitioner of the

27  healing arts licensed in the state are exempt.

28         (h)  The purchase by a veterinarian of commonly

29  recognized substances possessing curative or remedial

30  properties which are ordered and dispensed as treatment for a

31  diagnosed health disorder by or on the prescription of a duly

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 1  licensed veterinarian, and which are applied to or consumed by

 2  animals for alleviation of pain or the cure or prevention of

 3  sickness, disease, or suffering are exempt. Also exempt are

 4  the purchase by a veterinarian of antiseptics, absorbent

 5  cotton, gauze for bandages, lotions, vitamins, and worm

 6  remedies.

 7         (i)  X-ray opaques, also known as opaque drugs and

 8  radiopaque, such as the various opaque dyes and barium

 9  sulphate, when used in connection with medical X rays for

10  treatment of bodies of humans and animals, are exempt.

11         (e)(j)  Parts, special attachments, special lettering,

12  and other like items that are added to or attached to tangible

13  personal property so that a handicapped person can use them

14  are exempt when such items are purchased by a person pursuant

15  to an individual prescription.

16         (f)(k)  This subsection shall be strictly construed and

17  enforced.

18         (3)  EXEMPTIONS, PARTIAL; CERTAIN FARM

19  EQUIPMENT.--There shall be exempt from the tax imposed by this

20  chapter taxable at the rate of 2.5 percent the sale, rental,

21  lease, use, consumption, or storage for use in this state of

22  self-propelled, power-drawn, or power-driven farm equipment

23  used exclusively on a farm or in a forest in the agricultural

24  production of crops or products as produced by those

25  agricultural industries included in s. 570.02(1), or for fire

26  prevention and suppression work with respect to such crops or

27  products. Harvesting may not be construed to include

28  processing activities. This exemption is not forfeited by

29  moving farm equipment between farms or forests. However, this

30  exemption shall not be allowed unless the purchaser, renter,

31  or lessee signs a certificate stating that the farm equipment

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 1  is to be used exclusively on a farm or in a forest for

 2  agricultural production or for fire prevention and

 3  suppression, as required by this subsection. Possession by a

 4  seller, lessor, or other dealer of a written certification by

 5  the purchaser, renter, or lessee certifying the purchaser's,

 6  renter's, or lessee's entitlement to an exemption permitted by

 7  this subsection relieves the seller from the responsibility of

 8  collecting the tax on the nontaxable amounts, and the

 9  department shall look solely to the purchaser for recovery of

10  such tax if it determines that the purchaser was not entitled

11  to the exemption.

12         Section 10.  Section 212.095, Florida Statutes, is

13  amended to read:

14         212.095  Refunds.--

15         (1)  No exemption granted on a refund basis pursuant to

16  this chapter is authorized except as provided in this section.

17         (2)(a)  No person may secure a refund under this

18  chapter unless such person is the holder of an unrevoked

19  refund permit issued by the department before the purchase for

20  which a refund is sought, which permit shall be numbered and

21  issued annually.

22         (b)  To procure a permit, a person must file with the

23  department an application, on forms furnished by the

24  department, stating that he or she is entitled to a refund

25  according to the provisions of this chapter and that he or she

26  intends to file an application for refund for the current

27  calendar year, and must furnish the department such other

28  information as the department requests.

29         (c)  No person may in any event be allowed a refund

30  unless he or she has filed the application provided for in

31  

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 1  paragraph (b) with the department. A permit shall be effective

 2  on the date issued by the department.

 3         (d)  If an applicant for a refund permit has violated

 4  any provision of this section or any regulation pursuant

 5  hereto, or has been convicted of bribery, theft, or false

 6  swearing within the period of 5 years preceding the

 7  application, or if the department has evidence of the

 8  financial irresponsibility of the applicant, the department

 9  may require the applicant to execute a corporate surety bond

10  of $1,000 to be approved by the department, conditioned upon

11  the payment of all taxes, penalties, and fines for which such

12  applicant may become liable under this chapter.

13         (2)(3)(a)  When a sale is made to a person who claims

14  to be entitled to a refund under this section, the seller

15  shall make out a sales invoice, which shall contain the

16  following information:

17         1.  The name and business address of the purchaser.

18         2.  A description of the item or services sold.

19         3.  The date on which the purchase was made.

20         4.  The price and amount of tax paid for the item or

21  services.

22         5.  The name and place of business of the seller at

23  which the sale was made.

24         6.  The refund permit number of the purchaser.

25         (b)  The sales invoice shall be retained by the

26  purchaser for attachment to his or her application for a

27  refund, as a part thereof. No refund will be allowed unless

28  the seller has executed such an invoice and unless proof of

29  payment of the taxes for which the refund is claimed is

30  attached.  The department may refuse to grant a refund if the

31  

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 1  invoice is incomplete and fails to contain the full

 2  information required in this subsection.

 3         (c)  No person may execute a sales invoice, as

 4  described in paragraph (a), except a dealer duly registered

 5  pursuant to this chapter, or an authorized agent thereof.

 6         (3)(4)(a)  No refund may be authorized unless a sworn

 7  application therefor containing the information required in

 8  this section is filed with the department not later than 30

 9  days immediately following the quarter for which the refund is

10  claimed.  When a claim is filed after such 30 days and a

11  justified excuse for late filing is presented to the

12  department and the last preceding claim was filed on time,

13  such late filing may be accepted through 60 days following the

14  quarter.  No refund will be authorized unless the amount due

15  is for $5 or more in any quarter and unless application is

16  made upon forms prescribed by the department.

17         (b)  Claims shall be filed and paid for each calendar

18  quarter.  The department shall deduct a fee of $2 for each

19  claim, which fee shall be deposited in the General Revenue

20  Fund.

21         (c)  Refund application forms shall include at a

22  minimum the following information:

23         1.  The name and address of the person claiming the

24  refund.

25         2.  The refund permit number of such person.

26         2.3.  The location at which the items or services for

27  which a refund is claimed are used.

28         3.4.  A description of each such item or service and

29  the purpose for which such item or service was acquired.

30         4.5.  Copies of the sales invoices of items or services

31  for which a refund is being claimed.

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 1         (4)(5)  The right to receive any refund under the

 2  provisions of this section is not assignable, except to the

 3  executor or administrator, or to the receiver, trustee in

 4  bankruptcy, or assignee in an insolvency proceeding, of the

 5  person entitled to the refund.

 6         (5)(6)(a)  Each registered dealer shall, in accordance

 7  with the requirements of the department, keep at his or her

 8  principal place of business in this state or at the location

 9  where the sale is made a complete record or duplicate sales

10  tickets of all items or services sold by the registered dealer

11  for which a refund provided in this section may be claimed,

12  which records shall contain the information required in

13  paragraph (2)(a) (3)(a).

14         (b)  Every person applying for to whom a refund permit

15  has been issued under this section shall, in accordance with

16  the requirements of the department, keep at his or her

17  residence or principal place of business in this state a

18  record of each purchase for which a refund is claimed,

19  including the information required in paragraph (2)(a) (3)(a).

20         (c)  The records required to be kept under this

21  subsection shall at all reasonable hours be subject to audit

22  or inspection by the department or by any person duly

23  authorized by it.  Such records shall be preserved and may not

24  be destroyed until 3 years after the date the item to which

25  they relate was sold or purchased.

26         (6)(7)  Agents of the department are authorized to go

27  upon the premises of any refund applicant permitholder, or

28  duly authorized agent thereof, to make an inspection to

29  ascertain any matter connected with the operation of this

30  section or the enforcement hereof. However, no agent may enter

31  

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 1  the dwelling of any person without the consent of the occupant

 2  or authority from a court of competent jurisdiction.

 3         (7)(8)  If any taxes are refunded erroneously, the

 4  department shall advise the payee by registered mail of the

 5  erroneous refund.  If the payee fails to reimburse the state

 6  within 15 days after the receipt of the letter, an action may

 7  be instituted by the department against such payee in the

 8  circuit court, and the department shall recover from the payee

 9  the amount of the erroneous refund plus a penalty of 25

10  percent.

11         (8)(9)  A No person may not shall:

12         (a)  Knowingly make a false or fraudulent statement in

13  an application for a refund permit or in an application for a

14  refund of any taxes under this section;

15         (b)  Fraudulently obtain a refund of such taxes; or

16         (c)  Knowingly aid or assist in making any such false

17  or fraudulent statement or claim.

18         (10)  The refund permit of any person who violates any

19  provision of this section shall be revoked by the department

20  and may not be reissued until 2 years have elapsed from the

21  date of such revocation.  The refund permit of any person who

22  violates any other provision of this chapter may be suspended

23  by the department for any period, in its discretion, not

24  exceeding 6 months.

25         (9)(11)  Refund permits and refund application forms

26  must shall include instructions for dealers and purchasers as

27  to the relevant requirements of this section.

28         Section 11.  Section 212.094, Florida Statutes, is

29  created to read:

30         212.094  Purchaser requests for refunds from dealers.--

31  

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 1         (1)  If a purchaser seeks a refund of or credit from a

 2  dealer for a tax collected under this chapter by that dealer,

 3  the purchaser must submit a written request for the refund or

 4  credit to the dealer in accordance with this section. The

 5  request must contain all the information necessary for the

 6  dealer to determine the validity of the purchaser's request.

 7         (2)  The purchaser may not take any other action

 8  against the dealer with respect to the requested refund or

 9  credit until the dealer has had 60 days following receipt of a

10  completed request in which to respond.

11         (3)  This section does not change the law regarding

12  standing to claim a refund.

13         Section 12.  Section 212.12, Florida Statutes, is

14  amended to read:

15         212.12  Dealer's credit for collecting tax; penalties

16  for noncompliance; powers of Department of Revenue in dealing

17  with delinquents; computing tax due brackets applicable to

18  taxable transactions; records required.--

19         (1)  Notwithstanding any other provision of law and for

20  the purpose of compensating persons granting licenses for and

21  the lessors of real and personal property taxed hereunder, for

22  the purpose of compensating dealers in tangible personal

23  property, for the purpose of compensating dealers providing

24  communication services and taxable services, for the purpose

25  of compensating owners of places where admissions are

26  collected, and for the purpose of compensating remitters of

27  any taxes or fees reported on the same documents utilized for

28  the sales and use tax, as compensation for the keeping of

29  prescribed records, filing timely tax returns, and the proper

30  accounting and remitting of taxes by them, such seller,

31  person, lessor, dealer, owner, and remitter (except dealers

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 1  who make mail order sales) shall be allowed 2.5 percent of the

 2  amount of the tax due and accounted for and remitted to the

 3  department, in the form of a deduction in submitting his or

 4  her report and paying the amount due by him or her; the

 5  department shall allow such deduction of 2.5 percent of the

 6  amount of the tax to the person paying the same for remitting

 7  the tax and making of tax returns in the manner herein

 8  provided, for paying the amount due to be paid by him or her,

 9  and as further compensation to dealers in tangible personal

10  property for the keeping of prescribed records and for

11  collection of taxes and remitting the same. However, if the

12  amount of the tax due and remitted to the department for the

13  reporting period exceeds $1,200, no allowance shall be allowed

14  for all amounts in excess of $1,200. The executive director of

15  the department is authorized to negotiate a collection

16  allowance, pursuant to rules promulgated by the department,

17  with a dealer who makes mail order sales.  The rules of the

18  department shall provide guidelines for establishing the

19  collection allowance based upon the dealer's estimated costs

20  of collecting the tax, the volume and value of the dealer's

21  mail order sales to purchasers in this state, and the

22  administrative and legal costs and likelihood of achieving

23  collection of the tax absent the cooperation of the dealer.

24  However, in no event shall the collection allowance negotiated

25  by the executive director exceed 10 percent of the tax

26  remitted for a reporting period.

27         (a)  The Department of Revenue may deny the collection

28  allowance if a taxpayer files an incomplete return or if the

29  required tax return or tax is delinquent at the time of

30  payment.

31  

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 1         1.  An "incomplete return" is, for purposes of this

 2  chapter, a return which is lacking such uniformity,

 3  completeness, and arrangement that the physical handling,

 4  verification, review of the return, or determination of other

 5  taxes and fees reported on the return may not be readily

 6  accomplished.

 7         2.  The department shall adopt rules requiring such

 8  information as it may deem necessary to ensure that the tax

 9  levied hereunder is properly collected, reviewed, compiled,

10  reported, and enforced, including, but not limited to: the

11  amount of gross sales; the amount of taxable sales; the amount

12  of tax collected or due; the amount of lawful refunds,

13  deductions, or credits claimed; the amount claimed as the

14  dealer's collection allowance; the amount of penalty and

15  interest; the amount due with the return; and such other

16  information as the Department of Revenue may specify. The

17  department shall require that transient rentals and

18  agricultural equipment transactions be separately shown. Sales

19  made through vending machines as defined in s. 212.0515 must

20  be separately shown on the return. Sales made through

21  coin-operated amusement machines as defined by s. 212.02 and

22  the number of machines operated must be separately shown on

23  the return or on a form prescribed by the department. If a

24  separate form is required, the same penalties for late filing,

25  incomplete filing, or failure to file as provided for the

26  sales tax return shall apply to said form.

27         (b)  The collection allowance and other credits or

28  deductions provided in this chapter shall be applied

29  proportionally to any taxes or fees reported on the same

30  documents used for the sales and use tax.

31  

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 1         (c)  Notwithstanding paragraphs (a) and (b), a Model 1

 2  seller under the Streamlined Sales and Use Tax Agreement is

 3  not entitled to the collection allowance described in

 4  paragraphs (a) and (b).

 5         (d)1.  In addition to any collection allowance that may

 6  be provided under this subsection, the department may provide

 7  the monetary allowances required to be provided by the state

 8  to certified service providers and voluntary sellers pursuant

 9  to Article VI of the Streamlined Sales and Use Tax Agreement,

10  as amended.

11         2.  Such monetary allowances must be in the form of

12  collection allowances that certified service providers or

13  voluntary sellers are permitted to retain from the tax revenue

14  collected on remote sales to be remitted to the state pursuant

15  to this chapter.

16         3.  For purposes of this paragraph, the term "voluntary

17  seller" or "volunteer seller" means a seller that does not

18  have a requirement to register in this state to collect

19  Florida sales tax pursuant to this chapter, and the term

20  "remote sales" means revenue generated by such a seller for

21  Florida for which the seller does not have a requirement to

22  register to collect Florida sales tax pursuant to this

23  chapter.

24         (2)(a)  When any person required hereunder to make any

25  return or to pay any tax or fee imposed by this chapter either

26  fails to timely file such return or fails to pay the tax or

27  fee shown due on the return within the time required

28  hereunder, in addition to all other penalties provided herein

29  and by the laws of this state in respect to such taxes or

30  fees, a specific penalty shall be added to the tax or fee in

31  the amount of 10 percent of either the tax or fee shown on the

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 1  return that is not timely filed or any tax or fee not paid

 2  timely. The penalty may not be less than $50 for failure to

 3  timely file a tax return required by s. 212.11(1) or timely

 4  pay the tax or fee shown due on the return except as provided

 5  in s. 213.21(10). If a person fails to timely file a return

 6  required by s. 212.11(1) and to timely pay the tax or fee

 7  shown due on the return, only one penalty of 10 percent, which

 8  may not be less than $50, shall be imposed.

 9         (b)  When any person required under this section to

10  make a return or to pay a tax or fee imposed by this chapter

11  fails to disclose the tax or fee on the return within the time

12  required, excluding a noncompliant filing event generated by

13  situations covered in paragraph (a), in addition to all other

14  penalties provided in this section and by the laws of this

15  state in respect to such taxes or fees, a specific penalty

16  shall be added to the additional tax or fee owed in the amount

17  of 10 percent of any such unpaid tax or fee not paid timely if

18  the failure is for not more than 30 days, with an additional

19  10 percent of any such unpaid tax or fee for each additional

20  30 days, or fraction thereof, while the failure continues, not

21  to exceed a total penalty of 50 percent, in the aggregate, of

22  any unpaid tax or fee.

23         (c)  Any person who knowingly and with a willful intent

24  to evade any tax imposed under this chapter fails to file six

25  consecutive returns as required by law commits a felony of the

26  third degree, punishable as provided in s. 775.082 or s.

27  775.083.

28         (d)  Any person who makes a false or fraudulent return

29  with a willful intent to evade payment of any tax or fee

30  imposed under this chapter shall, in addition to the other

31  penalties provided by law, be liable for a specific penalty of

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 1  100 percent of the tax bill or fee and, upon conviction, for

 2  fine and punishment as provided in s. 775.082, s. 775.083, or

 3  s. 775.084.

 4         1.  If the total amount of unreported taxes or fees is

 5  less than $300, the first offense resulting in conviction is a

 6  misdemeanor of the second degree, the second offense resulting

 7  in conviction is a misdemeanor of the first degree, and the

 8  third and all subsequent offenses resulting in conviction is a

 9  misdemeanor of the first degree, and the third and all

10  subsequent offenses resulting in conviction are felonies of

11  the third degree.

12         2.  If the total amount of unreported taxes or fees is

13  $300 or more but less than $20,000, the offense is a felony of

14  the third degree.

15         3.  If the total amount of unreported taxes or fees is

16  $20,000 or more but less than $100,000, the offense is a

17  felony of the second degree.

18         4.  If the total amount of unreported taxes or fees is

19  $100,000 or more, the offense is a felony of the first degree.

20         (e)  When any person, firm, or corporation fails to

21  timely remit the proper estimated payment required under s.

22  212.11, a specific penalty shall be added in an amount equal

23  to 10 percent of any unpaid estimated tax. Beginning with

24  January 1, 1985, returns, the department, upon a showing of

25  reasonable cause, is authorized to waive or compromise

26  penalties imposed by this paragraph. However, other penalties

27  and interest shall be due and payable if the return on which

28  the estimated payment was due was not timely or properly

29  filed.

30         (f)  Dealers filing a consolidated return pursuant to

31  s. 212.11(1)(e) shall be subject to the penalty established in

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 1  paragraph (e) unless the dealer has paid the required

 2  estimated tax for his or her consolidated return as a whole

 3  without regard to each location.  If the dealer fails to pay

 4  the required estimated tax for his or her consolidated return

 5  as a whole, each filing location shall stand on its own with

 6  respect to calculating penalties pursuant to paragraph (e).

 7         (3)  When any dealer, or other person charged herein,

 8  fails to remit the tax, or any portion thereof, on or before

 9  the day when such tax is required by law to be paid, there

10  shall be added to the amount due interest at the rate of 1

11  percent per month of the amount due from the date due until

12  paid.  Interest on the delinquent tax shall be calculated

13  beginning on the 21st day of the month following the month for

14  which the tax is due, except as otherwise provided in this

15  chapter.

16         (4)  All penalties and interest imposed by this chapter

17  shall be payable to and collectible by the department in the

18  same manner as if they were a part of the tax imposed.  The

19  department may settle or compromise any such interest or

20  penalties pursuant to s. 213.21.

21         (5)(a)  The department is authorized to audit or

22  inspect the records and accounts of dealers defined herein,

23  including audits or inspections of dealers who make mail order

24  sales to the extent permitted by another state, and to correct

25  by credit any overpayment of tax, and, in the event of a

26  deficiency, an assessment shall be made and collected.  No

27  administrative finding of fact is necessary prior to the

28  assessment of any tax deficiency.

29         (b)  In the event any dealer or other person charged

30  herein fails or refuses to make his or her records available

31  for inspection so that no audit or examination has been made

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 1  of the books and records of such dealer or person, fails or

 2  refuses to register as a dealer, fails to make a report and

 3  pay the tax as provided by this chapter, makes a grossly

 4  incorrect report or makes a report that is false or

 5  fraudulent, then, in such event, it shall be the duty of the

 6  department to make an assessment from an estimate based upon

 7  the best information then available to it for the taxable

 8  period of retail sales of such dealer, the gross proceeds from

 9  rentals, the total admissions received, amounts received from

10  leases of tangible personal property by such dealer, or of the

11  cost price of all articles of tangible personal property

12  imported by the dealer for use or consumption or distribution

13  or storage to be used or consumed in this state, or of the

14  sales or cost price of all services the sale or use of which

15  is taxable under this chapter, together with interest, plus

16  penalty, if such have accrued, as the case may be.  Then the

17  department shall proceed to collect such taxes, interest, and

18  penalty on the basis of such assessment which shall be

19  considered prima facie correct, and the burden to show the

20  contrary shall rest upon the dealer, seller, owner, or lessor,

21  as the case may be.

22         (6)(a)  The department is given the power to prescribe

23  the records to be kept by all persons subject to taxes imposed

24  by this chapter. It shall be the duty of every person required

25  to make a report and pay any tax under this chapter, every

26  person receiving rentals or license fees, and owners of places

27  of admission, to keep and preserve suitable records of the

28  sales, leases, rentals, license fees, admissions, or

29  purchases, as the case may be, taxable under this chapter;

30  such other books of account as may be necessary to determine

31  the amount of the tax due hereunder; and other information as

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 1  may be required by the department.  It shall be the duty of

 2  every such person so charged with such duty, moreover, to keep

 3  and preserve as long as required by s. 213.35 all invoices and

 4  other records of goods, wares, and merchandise; records of

 5  admissions, leases, license fees and rentals; and records of

 6  all other subjects of taxation under this chapter. All such

 7  books, invoices, and other records shall be open to

 8  examination at all reasonable hours to the department or any

 9  of its duly authorized agents.

10         (b)  For the purpose of this subsection, if a dealer

11  does not have adequate records of his or her retail sales or

12  purchases, the department may, upon the basis of a test or

13  sampling of the dealer's available records or other

14  information relating to the sales or purchases made by such

15  dealer for a representative period, determine the proportion

16  that taxable retail sales bear to total retail sales or the

17  proportion that taxable purchases bear to total purchases.

18  This subsection does not affect the duty of the dealer to

19  collect, or the liability of any consumer to pay, any tax

20  imposed by or pursuant to this chapter.

21         (c)1.  If the records of a dealer are adequate but

22  voluminous in nature and substance, the department may sample

23  such records, except for fixed assets, and project the audit

24  findings derived therefrom over the entire audit period to

25  determine the proportion that taxable retail sales bear to

26  total retail sales or the proportion that taxable purchases

27  bear to total purchases. In order to conduct such a sample,

28  the department must first make a good faith effort to reach an

29  agreement with the dealer, which agreement provides for the

30  means and methods to be used in the sampling process.  In the

31  

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 1  event that no agreement is reached, the dealer is entitled to

 2  a review by the executive director.

 3         2.  For the purposes of sampling pursuant to

 4  subparagraph 1., the department shall project any deficiencies

 5  and overpayments derived therefrom over the entire audit

 6  period. In determining the dealer's compliance, the department

 7  shall reduce any tax deficiency as derived from the sample by

 8  the amount of any overpayment derived from the sample. In the

 9  event the department determines from the sample results that

10  the dealer has a net tax overpayment, the department shall

11  provide the findings of this overpayment to the Chief

12  Financial Officer for repayment of funds paid into the State

13  Treasury through error pursuant to s. 215.26.

14         3.a.  A taxpayer is entitled, both in connection with

15  an audit and in connection with an application for refund

16  filed independently of any audit, to establish the amount of

17  any refund or deficiency through statistical sampling when the

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

19  are adequate but voluminous. Alternatively, a taxpayer is

20  entitled to establish any refund or deficiency through any

21  other sampling method agreed upon by the taxpayer and the

22  department when the taxpayer's records, other than those

23  regarding fixed assets, are adequate but voluminous. Whether

24  done through statistical sampling or any other sampling method

25  agreed upon by the taxpayer and the department, the completed

26  sample must reflect both overpayments and underpayments of

27  taxes due. The sample shall be conducted through:

28         (I)  A taxpayer request to perform the sampling through

29  the certified audit program pursuant to s. 213.285;

30  

31  

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 1         (II)  Attestation by a certified public accountant as

 2  to the adequacy of the sampling method utilized and the

 3  results reached using such sampling method; or

 4         (III)  A sampling method that has been submitted by the

 5  taxpayer and approved by the department before a refund claim

 6  is submitted. This sub-sub-subparagraph does not prohibit a

 7  taxpayer from filing a refund claim prior to approval by the

 8  department of the sampling method; however, a refund claim

 9  submitted before the sampling method has been approved by the

10  department cannot be a complete refund application pursuant to

11  s. 213.255 until the sampling method has been approved by the

12  department.

13         b.  The department shall prescribe by rule the

14  procedures to be followed under each method of sampling. Such

15  procedures shall follow generally accepted auditing procedures

16  for sampling. The rule shall also set forth other criteria

17  regarding the use of sampling, including, but not limited to,

18  training requirements that must be met before a sampling

19  method may be utilized and the steps necessary for the

20  department and the taxpayer to reach agreement on a sampling

21  method submitted by the taxpayer for approval by the

22  department.

23         (7)  In the event the dealer has imported tangible

24  personal property and he or she fails to produce an invoice

25  showing the cost price of the articles, as defined in this

26  chapter, which are subject to tax, or the invoice does not

27  reflect the true or actual cost price as defined herein, then

28  the department shall ascertain, in any manner feasible, the

29  true cost price, and assess and collect the tax thereon with

30  interest plus penalties, if such have accrued on the true cost

31  price as assessed by it.  The assessment so made shall be

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 1  considered prima facie correct, and the duty shall be on the

 2  dealer to show to the contrary.

 3         (8)  In the case of the lease or rental of tangible

 4  personal property, or other rentals or license fees as herein

 5  defined and taxed, if the consideration given or reported by

 6  the lessor, person receiving rental or license fee, or dealer

 7  does not, in the judgment of the department, represent the

 8  true or actual consideration, then the department is

 9  authorized to ascertain the same and assess and collect the

10  tax thereon in the same manner as above provided, with respect

11  to imported tangible property, together with interest, plus

12  penalties, if such have accrued.

13         (9)  Taxes imposed by this chapter upon the privilege

14  of the use, consumption, storage for consumption, or sale of

15  tangible personal property, admissions, license fees, rentals,

16  communication services, and upon the sale or use of services

17  as herein taxed shall be collected upon the basis of an

18  addition of the tax imposed by this chapter to the total price

19  of such admissions, license fees, rentals, communication or

20  other services, or sale price of such article or articles that

21  are purchased, sold, or leased at any one time by or to a

22  customer or buyer; the dealer, or person charged herein, is

23  required to pay a privilege tax in the amount of the tax

24  imposed by this chapter on the total of his or her gross sales

25  of tangible personal property, admissions, license fees,

26  rentals, and communication services or to collect a tax upon

27  the sale or use of services, and such person or dealer shall

28  add the tax imposed by this chapter to the price, license fee,

29  rental, or admissions, and communication or other services and

30  collect the total sum from the purchaser, admittee, licensee,

31  lessee, or consumer. In computing the tax due or to be

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 1  collected as the result of any transaction, the seller may

 2  elect to compute the tax due on a transaction on either an

 3  item or an invoice basis. The tax rate shall be the sum of the

 4  applicable state and local rate, if any, and the tax

 5  computation must be carried to the third decimal place.

 6  Whenever the third decimal place is greater than four, the tax

 7  shall be rounded to the next whole cent. The department shall

 8  make available in an electronic format or otherwise the tax

 9  amounts and the following brackets applicable to all

10  transactions taxable at the rate of 6 percent:

11         (a)  On single sales of less than 10 cents, no tax

12  shall be added.

13         (b)  On single sales in amounts from 10 cents to 16

14  cents, both inclusive, 1 cent shall be added for taxes.

15         (c)  On sales in amounts from 17 cents to 33 cents,

16  both inclusive, 2 cents shall be added for taxes.

17         (d)  On sales in amounts from 34 cents to 50 cents,

18  both inclusive, 3 cents shall be added for taxes.

19         (e)  On sales in amounts from 51 cents to 66 cents,

20  both inclusive, 4 cents shall be added for taxes.

21         (f)  On sales in amounts from 67 cents to 83 cents,

22  both inclusive, 5 cents shall be added for taxes.

23         (g)  On sales in amounts from 84 cents to $1, both

24  inclusive, 6 cents shall be added for taxes.

25         (h)  On sales in amounts of more than $1, 6 percent

26  shall be charged upon each dollar of price, plus the

27  appropriate bracket charge upon any fractional part of a

28  dollar.

29         (10)  In counties which have adopted a discretionary

30  sales surtax at the rate of 1 percent, the department shall

31  make available in an electronic format or otherwise the tax

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 1  amounts and the following brackets applicable to all taxable

 2  transactions that would otherwise have been transactions

 3  taxable at the rate of 6 percent:

 4         (a)  On single sales of less than 10 cents, no tax

 5  shall be added.

 6         (b)  On single sales in amounts from 10 cents to 14

 7  cents, both inclusive, 1 cent shall be added for taxes.

 8         (c)  On sales in amounts from 15 cents to 28 cents,

 9  both inclusive, 2 cents shall be added for taxes.

10         (d)  On sales in amounts from 29 cents to 42 cents,

11  both inclusive, 3 cents shall be added for taxes.

12         (e)  On sales in amounts from 43 cents to 57 cents,

13  both inclusive, 4 cents shall be added for taxes.

14         (f)  On sales in amounts from 58 cents to 71 cents,

15  both inclusive, 5 cents shall be added for taxes.

16         (g)  On sales in amounts from 72 cents to 85 cents,

17  both inclusive, 6 cents shall be added for taxes.

18         (h)  On sales in amounts from 86 cents to $1, both

19  inclusive, 7 cents shall be added for taxes.

20         (i)  On sales in amounts from $1 up to, and including,

21  the first $5,000 in price, 7 percent shall be charged upon

22  each dollar of price, plus the appropriate bracket charge upon

23  any fractional part of a dollar.

24         (j)  On sales in amounts of more than $5,000 in price,

25  7 percent shall be added upon the first $5,000 in price, and 6

26  percent shall be added upon each dollar of price in excess of

27  the first $5,000 in price, plus the bracket charges upon any

28  fractional part of a dollar as provided for in subsection (9).

29         (11)  The department shall make available in an

30  electronic format or otherwise the tax amounts and brackets

31  applicable to all taxable transactions that occur in counties

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 1  that have a surtax at a rate other than 1 percent which

 2  transactions would otherwise have been transactions taxable at

 3  the rate of 6 percent. Likewise, the department shall make

 4  available in an electronic format or otherwise the tax amounts

 5  and brackets applicable to transactions taxable at 2.5 or 3

 6  percent pursuant to s. 212.08(3), transactions taxable at 7

 7  percent pursuant to s. 212.05(1)(e), and on transactions which

 8  would otherwise have been so taxable in counties which have

 9  adopted a discretionary sales surtax.

10         (10)(12)  It is hereby declared to be the legislative

11  intent that, whenever in the construction, administration, or

12  enforcement of this chapter there may be any question

13  respecting a duplication of the tax, the end consumer, or last

14  retail sale, be the sale intended to be taxed and insofar as

15  may be practicable there be no duplication or pyramiding of

16  the tax.

17         (11)(13)  In order to aid the administration and

18  enforcement of the provisions of this chapter with respect to

19  the rentals and license fees, each lessor or person granting

20  the use of any hotel, apartment house, roominghouse, tourist

21  or trailer camp, real property, or any interest therein, or

22  any portion thereof, inclusive of owners; property managers;

23  lessors; landlords; hotel, apartment house, and roominghouse

24  operators; and all licensed real estate agents within the

25  state leasing, granting the use of, or renting such property,

26  shall be required to keep a record of each and every such

27  lease, license, or rental transaction which is taxable under

28  this chapter, in such a manner and upon such forms as the

29  department may prescribe, and to report such transaction to

30  the department or its designated agents, and to maintain such

31  records as long as required by s. 213.35, subject to the

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 1  inspection of the department and its agents.  Upon the failure

 2  by such owner; property manager; lessor; landlord; hotel,

 3  apartment house, roominghouse, tourist or trailer camp

 4  operator; or real estate agent to keep and maintain such

 5  records and to make such reports upon the forms and in the

 6  manner prescribed, such owner; property manager; lessor;

 7  landlord; hotel, apartment house, roominghouse, tourist or

 8  trailer camp operator; receiver of rent or license fees; or

 9  real estate agent is guilty of a misdemeanor of the second

10  degree, punishable as provided in s. 775.082 or s. 775.083,

11  for the first offense; for subsequent offenses, they are each

12  guilty of a misdemeanor of the first degree, punishable as

13  provided in s. 775.082 or s. 775.083.  If, however, any

14  subsequent offense involves intentional destruction of such

15  records with an intent to evade payment of or deprive the

16  state of any tax revenues, such subsequent offense shall be a

17  felony of the third degree, punishable as provided in s.

18  775.082 or s. 775.083.

19         (12)(14)  If it is determined upon audit that a dealer

20  has collected and remitted taxes by applying the applicable

21  tax rate to each transaction as described in subsection (9)

22  and rounding the tax due to the nearest whole cent rather than

23  applying the appropriate bracket system provided by law or

24  department rule, the dealer shall not be held liable for

25  additional tax, penalty, and interest resulting from such

26  failure if:

27         (a)  The dealer acted in a good faith belief that

28  rounding to the nearest whole cent was the proper method of

29  determining the amount of tax due on each taxable transaction.

30         (b)  The dealer timely reported and remitted all taxes

31  collected on each taxable transaction.

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 1         (c)  The dealer agrees in writing to future compliance

 2  with the laws and rules concerning brackets applicable to the

 3  dealer's transactions.

 4         Section 13.  Subsection (3) of section 212.17, Florida

 5  Statutes, is amended to read:

 6         212.17  Credits for returned goods, rentals, or

 7  admissions; goods acquired for dealer's own use and

 8  subsequently resold; additional powers of department.--

 9         (3)  A dealer who has paid the tax imposed by this

10  chapter on tangible personal property or services may take a

11  credit or obtain a refund for any tax paid by the dealer on

12  the unpaid balance due on worthless accounts within 12 months

13  following the month in which the bad debt has been charged off

14  for federal income tax purposes. A dealer who has paid the tax

15  imposed by this chapter on tangible personal property or

16  services and who is not required to file federal income tax

17  returns may take a credit or obtain a refund for any tax paid

18  by the dealer on the unpaid balance due on worthless accounts

19  within 12 months following the month in which the bad debt is

20  written off as uncollectible in the dealer's books and records

21  and would be eligible for a bad-debt deduction for federal

22  income tax purposes if the dealer was required to file a

23  federal income tax return.

24         (a)  A dealer that is taking a credit or obtaining a

25  refund on worthless accounts shall base the bad-debt-recovery

26  calculation in accordance with 26 U.S.C. s. 166.

27         (b)  Notwithstanding paragraph (a), the amount

28  calculated pursuant to 26 U.S.C. s. 166 shall be adjusted to

29  exclude financing charges or interest; sales or use taxes

30  charged on the purchase price; uncollectible amounts on

31  property that remains in the possession of the seller until

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 1  the full purchase price is paid; expenses incurred in

 2  attempting to collect any debt; and repossessed property.

 3         (c)  When the amount of bad debt exceeds the amount of

 4  taxable sales for the period during which the bad debt is

 5  written off, a refund claim must be filed, notwithstanding s.

 6  215.26(2), within 3 years after the due date of the return on

 7  which the bad debt could first be claimed.

 8         (d)  If any accounts so charged off for which a credit

 9  or refund has been obtained are thereafter in whole or in part

10  paid to the dealer, the amount so paid shall be included in

11  the first return filed after such collection and the tax paid

12  accordingly.

13         (e)  If filing responsibilities have been assumed by a

14  certified service provider, the certified service provider

15  shall claim, on behalf of the seller, any bad-debt allowance

16  provided by this section. The certified service provider must

17  credit or refund to the seller the full amount of any bad-debt

18  allowance or refund received.

19         (f)  For the purposes of reporting a payment received

20  on a previously claimed bad debt, any payments made on a debt

21  or account are applied first proportionally to the taxable

22  price of the property or service and the sales tax thereon,

23  and secondly to interest, service charges, and any other

24  charges.

25         (g)  In situations in which the books and records of

26  the party claiming the bad-debt allowance support an

27  allocation of the bad debts among states that are members of

28  the Streamlined Sales and Use Tax Agreement, the allocation is

29  permitted among those states.

30         Section 14.  Paragraph (a) of subsection (3) of section

31  212.18, Florida Statutes, is amended to read:

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 1         212.18  Administration of law; registration of dealers;

 2  rules.--

 3         (3)(a)  Every person desiring to engage in or conduct

 4  business in this state as a dealer, as defined in this

 5  chapter, or to lease, rent, or let or grant licenses in living

 6  quarters or sleeping or housekeeping accommodations in hotels,

 7  apartment houses, roominghouses, or tourist or trailer camps

 8  that are subject to tax under s. 212.03, or to lease, rent, or

 9  let or grant licenses in real property, as defined in this

10  chapter, and every person who sells or receives anything of

11  value by way of admissions, must file with the department an

12  application for a certificate of registration for each place

13  of business, showing the names of the persons who have

14  interests in such business and their residences, the address

15  of the business, and such other data as the department may

16  reasonably require. However, owners and operators of vending

17  machines or newspaper rack machines are required to obtain

18  only one certificate of registration for each county in which

19  such machines are located. The department, by rule, may

20  authorize a dealer that uses independent sellers to sell its

21  merchandise to remit tax on the retail sales price charged to

22  the ultimate consumer in lieu of having the independent seller

23  register as a dealer and remit the tax. The department may

24  appoint the county tax collector as the department's agent to

25  accept applications for registrations. The application must be

26  made to the department before the person, firm, copartnership,

27  or corporation may engage in such business, and it must be

28  accompanied by a registration fee of $5. However, a

29  registration fee is not required to accompany an application

30  to engage in or conduct business to make mail order sales. The

31  department may waive the registration fee for applications

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 1  submitted through the department's Internet registration

 2  process or central electronic registration system provided by

 3  member states of the Streamlined Sales and Use Tax Agreement.

 4         Section 15.  Section 213.052, Florida Statutes, is

 5  created to read:

 6         213.052  Notice of state rate changes.--

 7         (1)  A sales or use tax rate change imposed under

 8  chapter 212 is effective on January 1, April 1, July 1, or

 9  October 1. The Department of Revenue shall provide notice of

10  such rate change to all affected sellers 90 days before the

11  effective date of the rate change.

12         (2)  Failure of a seller to receive notice does not

13  relieve the seller of its obligation to collect sales or use

14  tax.

15         Section 16.  Section 213.0521, Florida Statutes, is

16  created to read:

17         213.0521  Effective date of state rate changes.--The

18  effective date for services covering a period starting before

19  and ending after the statutory effective date is as follows:

20         (1)  For a rate increase, the new rate applies to the

21  first billing period starting on or after the effective date.

22         (2)  For a rate decrease, the new rate applies to bills

23  rendered on or after the effective date.

24         Section 17.  Subsection (11) is added to section

25  213.21, Florida Statutes, to read:

26         213.21  Informal conferences; compromises.--

27         (11)  Amnesty shall be provided for uncollected or

28  unpaid sales or use tax to a seller who registers to pay or to

29  collect and remit applicable sales or use tax in accordance

30  with the terms of the Streamlined Sales and Use Tax Agreement

31  authorized under s. 213.256, if the seller was not registered

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 1  with the Department of Revenue in the 12-month period

 2  preceding the effective date of participation in the agreement

 3  by this state.

 4         (a)  The amnesty precludes assessment for uncollected

 5  or unpaid sales or use tax, together with penalty or interest

 6  for sales made during the period the seller was not registered

 7  with the Department of Revenue, if registration occurs within

 8  12 months after the effective date of this state's

 9  participation in the agreement.

10         (b)  The amnesty is not available to a seller with

11  respect to any matter for which the seller received notice of

12  the commencement of an audit if the audit is not yet finally

13  resolved, including any related administrative and judicial

14  processes.

15         (c)  The amnesty is not available for sales or use

16  taxes already paid or remitted to the state or to taxes

17  collected by the seller.

18         (d)  The amnesty is fully effective, absent the

19  seller's fraud or intentional misrepresentation of a material

20  fact, as long as the seller continues registration and

21  continues payment or collection and remittance of applicable

22  sales or use taxes for at least 36 months.

23         (e)  The amnesty is applicable only to sales or use

24  taxes due from a seller in its capacity as a seller and not to

25  sales or use taxes due from a seller in its capacity as a

26  buyer.

27         Section 18.  Subsections (1) and (7) of section

28  213.256, Florida Statutes, are amended, present subsections

29  (8), (9), and (10) of that section are renumbered as

30  subsections (11), (12), and (13), respectively, and new

31  

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 1  subsections (8), (9), (10), and (14) are added to that

 2  section, to read:

 3         213.256  Simplified Sales and Use Tax Administration

 4  Act.--

 5         (1)  As used in this section and s. 213.2567 this

 6  section, the term:

 7         (a)  "Department" means the Department of Revenue.

 8         (b)  "Agent" means a person appointed by a seller to

 9  represent the seller before the member states.

10         (c)(b)  "Agreement" means the Streamlined Sales and Use

11  Tax Agreement as amended and adopted on November 12, 2002, and

12  as amended on November 19, 2003, and November 16, 2004 January

13  27, 2001, by the Executive Committee of the National

14  Conference of State Legislatures.

15         (d)(c)  "Certified automated system" means software

16  certified jointly by the states that are signatories to the

17  agreement to calculate the tax imposed by each jurisdiction on

18  a transaction, determine the amount of tax to remit to the

19  appropriate state, and maintain a record of the transaction.

20         (e)(d)  "Certified service provider" means an agent

21  certified under jointly by the states that are signatories to

22  the agreement to perform all of the seller's sales tax

23  functions other than the seller's obligation to remit tax on

24  its own purchases.

25         (f)  "Model 1 seller" means a seller that has selected

26  a certified service provider as its agent to perform all the

27  seller's sales and use tax functions other than the seller's

28  obligation to remit tax on its own purchases.

29         (g)  "Model 2 seller" means a seller that has selected

30  a certified automated system to perform part of its sales and

31  

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 1  use tax functions, but retains responsibility for remitting

 2  the tax.

 3         (h)  "Model 3 seller" means a seller that has sales in

 4  at least five member states, has total annual sales revenue of

 5  at least $500 million, has a proprietary system that

 6  calculates the amount of tax due each jurisdiction, and has

 7  entered into a performance agreement with the member states

 8  which establishes a tax performance standard for the seller.

 9  As used in this paragraph, a seller includes an affiliated

10  group of sellers using the same proprietary system.

11         (i)(e)  "Person" means an individual, trust, estate,

12  fiduciary, partnership, limited liability company, limited

13  liability partnership, corporation, or any other legal entity.

14         (j)  "Registered under this agreement" means

15  registration by a seller with the member states under the

16  central registration system.

17         (k)(f)  "Sales tax" means the tax levied under chapter

18  212.

19         (l)(g)  "Seller" means any person making sales, leases,

20  or rentals of personal property or services.

21         (m)(h)  "State" means any state of the United States

22  and the District of Columbia.

23         (n)(i)  "Use tax" means the tax levied under chapter

24  212.

25         (7)(a)  The agreement authorized by this act binds and

26  inures only to the benefit of this state and the other member

27  states. No person, other than a member state, is an intended

28  beneficiary of the agreement. Any benefit to a person other

29  than a state is established by the laws of this state and of

30  other member states and not by the terms of the agreement.

31  

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 1         (b)  Consistent with paragraph (a), no person has any

 2  cause of action or defense under the agreement or by virtue of

 3  this state's approval of the agreement. No person may

 4  challenge, in any action brought under any provision of law,

 5  any action or inaction by any department, agency, or other

 6  instrumentality of this state, or of any political subdivision

 7  of this state, on the ground that the action or inaction is

 8  inconsistent with the agreement.

 9         (c)  No law of this state, or the application thereof,

10  may be declared invalid as to any person or circumstance on

11  the ground that the provision or application is inconsistent

12  with the agreement.

13         (d)  The determinations pertaining to the agreement

14  which are made by the member states are final when rendered

15  and are not subject to any protest, appeal, or review.

16         (8)  Authority to administer the agreement rests with

17  the governing board comprised of representatives of each

18  member state. This state shall be represented by three

19  delegates, one appointed by the President of the Senate, one

20  appointed by the Speaker of the House of Representatives, and

21  the executive director of the department or his or her

22  designee.

23         (9)  With respect to each member state, the agreement

24  continues in full force and effect until a member state

25  withdraws its membership or is expelled. A member state's

26  withdrawal or expulsion is not effective until the first day

27  of a calendar quarter after a minimum of 60 days' notice. A

28  member state shall submit notice of its intent to withdraw

29  from the agreement to the governing board and the chief

30  executive of each member state's tax agency. The member state

31  shall provide public notice of its intent to withdraw and post

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 1  its notice of intent to withdraw from the agreement to the

 2  governing board and the chief executive of each member state's

 3  tax agency. The member state shall provide public notice of

 4  its intent to withdraw and post its notice of intent to

 5  withdraw on its Internet website. The withdrawal by or

 6  expulsion of a state does not affect the validity of the

 7  agreement among other member states. A state that withdraws or

 8  is expelled from the agreement remains liable for its share of

 9  any financial or contractual obligations that were incurred by

10  the governing board before the effective date of that state's

11  withdrawal or expulsion. The appropriate share of any

12  financial or contractual obligation shall be determined by the

13  state and the governing board in good faith based on the

14  relative benefits received and burdens incurred by the

15  parties.

16         (10)  Sanctions may be imposed upon a member state that

17  is found to be out of compliance with the agreement, which

18  include expulsion or other penalties as determined by the

19  governing board.

20         (14)  Each member state shall annually recertify that

21  it is in compliance with the agreement. Each member state

22  shall make a recertification to the governing board on or

23  before August 1 of each year after the year of the state's

24  entry. In its annual recertification, the state shall include

25  any changes in its statutes, rules, or regulations or other

26  authorities that could affect its compliance with the terms of

27  the agreement. The recertification shall be signed by the

28  executive director of the department. A member state that

29  cannot recertify its compliance with the agreement shall

30  submit a statement of noncompliance to the governing board.

31  The statement of noncompliance must include any action or

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 1  decision that takes the state out of compliance with the

 2  agreement and the steps it will take to return to compliance.

 3  Each member state shall post its annual recertification or

 4  statement of noncompliance on that state's Internet website.

 5         Section 19.  Section 213.2567, Florida Statutes, is

 6  created to read:

 7         213.2567  Simplified Sales and Use Tax registration,

 8  certification, liability, and audit.--

 9         (1)  A seller that registers under the agreement agrees

10  to collect and remit sales and use taxes for all taxable sales

11  into the member states, including member states joining after

12  the seller's registration. Withdrawal or revocation of a

13  member state does not relieve a seller of its responsibility

14  to remit taxes previously or subsequently collected on behalf

15  of the state.

16         (a)  When registering, the seller may select a model 1,

17  model 2, or model 3 method of remittance or other method

18  allowed by state law to remit the taxes collected.

19         (b)  A seller may be registered by an agent. Such an

20  appointment must be in writing and submitted to a member

21  state.

22         (2)(a)  A certified service provider is the agent of a

23  model 1 seller with whom the certified service provider has

24  contracted for the collection and remittance of sales and use

25  taxes. As the model 1 seller's agent, the certified service

26  provider is liable for sales and use tax due each member state

27  on all sales transactions it processes for the model 1 seller,

28  except as set out in paragraph (b).

29         (b)  A model 1 seller is not liable to the state for

30  sales or use tax due on transactions processed by the

31  certified service provider unless the model 1 seller has

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 1  misrepresented the type of items it sells or has committed

 2  fraud. In the absence of probable cause to believe that the

 3  model 1 seller has committed fraud or made a material

 4  misrepresentation, the model 1 seller is not subject to audit

 5  on the transactions processed by the certified service

 6  provider. A model 1 seller is subject to audit for

 7  transactions that have not been processed by the certified

 8  service provider. The member states acting jointly may perform

 9  a system check of the model 1 seller and review the model 1

10  seller's procedures to determine if the certified service

11  provider's system is functioning properly and to determine the

12  extent to which the model 1 seller's transactions are being

13  processed by the certified service provider.

14         (3)  A person that provides a certified automated

15  system is responsible for the proper functioning of that

16  system and is liable to the state for underpayments of tax

17  attributable to errors in the functioning of the certified

18  automated system. A model 2 seller that uses a certified

19  automated system remains responsible and is liable to the

20  state for reporting and remitting tax.

21         (4)  A model 3 seller is liable for the failure of the

22  proprietary system to meet the performance standard.

23         (5)  The governing board may certify a person as a

24  certified service provider if the person meets all of the

25  following requirements:

26         (a)  Uses a certified automated system;

27         (b)  Integrates its certified automated system with the

28  system of a seller for whom the person collects tax so that

29  the tax due on a sale is determined at the time of the sale;

30         (c)  Agrees to remit the taxes it collects at the time

31  and in the manner specified by the member states;

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 1         (d)  Agrees to file returns on behalf of the sellers

 2  for whom it collects tax;

 3         (e)  Agrees to protect the privacy of tax information

 4  it obtains in accordance with s. 213.053; and

 5         (f)  Enters into a contract with the member states and

 6  agrees to comply with the terms of the contract.

 7         (6)  The governing board may certify a software program

 8  as a certified automated system if the governing board

 9  determines that the program meets all of the following

10  requirements:

11         (a)  Determines the applicable state and local sales

12  and use tax rate for a transaction in accordance with s.

13  212.06(3) and (4);

14         (b)  Determines whether or not an item is exempt from

15  tax;

16         (c)  Determines the amount of tax to be remitted for

17  each taxpayer for a reporting period;

18         (d)  Can generate reports and returns as required by

19  the governing board; and

20         (e)  Meets any other requirement set by the governing

21  board.

22         (7)  The governing board may establish one or more

23  sales tax performance standards for model 3 sellers that meet

24  the eligibility criteria set by the governing board and that

25  developed a proprietary system to determine the amount of

26  sales and use tax due on transactions.

27         (8)  Disclosure of information necessary under this

28  section must be made according to a written agreement between

29  the executive director of the department or his or her

30  designee and the certified service provider. The certified

31  service provider is bound by the same requirements of

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 1  confidentiality as the department. Breach of confidentiality

 2  is a misdemeanor of the first degree, punishable as provided

 3  in s. 775.082 or s. 775.083.

 4         Section 20.  Paragraph (c) of subsection (2) and

 5  paragraph (c) of subsection (3) of section 212.055, Florida

 6  Statutes, are amended to read:

 7         212.055  Discretionary sales surtaxes; legislative

 8  intent; authorization and use of proceeds.--It is the

 9  legislative intent that any authorization for imposition of a

10  discretionary sales surtax shall be published in the Florida

11  Statutes as a subsection of this section, irrespective of the

12  duration of the levy.  Each enactment shall specify the types

13  of counties authorized to levy; the rate or rates which may be

14  imposed; the maximum length of time the surtax may be imposed,

15  if any; the procedure which must be followed to secure voter

16  approval, if required; the purpose for which the proceeds may

17  be expended; and such other requirements as the Legislature

18  may provide.  Taxable transactions and administrative

19  procedures shall be as provided in s. 212.054.

20         (2)  LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.--

21         (c)  Pursuant to s. 212.054(5) s. 212.054(4), the

22  proceeds of the surtax levied under this subsection shall be

23  distributed to the county and the municipalities within such

24  county in which the surtax was collected, according to:

25         1.  An interlocal agreement between the county

26  governing authority and the governing bodies of the

27  municipalities representing a majority of the county's

28  municipal population, which agreement may include a school

29  district with the consent of the county governing authority

30  and the governing bodies of the municipalities representing a

31  majority of the county's municipal population; or

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    Florida Senate - 2005                             CS for SB 56
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 1         2.  If there is no interlocal agreement, according to

 2  the formula provided in s. 218.62.

 3  

 4  Any change in the distribution formula must take effect on the

 5  first day of any month that begins at least 60 days after

 6  written notification of that change has been made to the

 7  department.

 8         (3)  SMALL COUNTY SURTAX.--

 9         (c)  Pursuant to s. 212.054(5) s. 212.054(4), the

10  proceeds of the surtax levied under this subsection shall be

11  distributed to the county and the municipalities within the

12  county in which the surtax was collected, according to:

13         1.  An interlocal agreement between the county

14  governing authority and the governing bodies of the

15  municipalities representing a majority of the county's

16  municipal population, which agreement may include a school

17  district with the consent of the county governing authority

18  and the governing bodies of the municipalities representing a

19  majority of the county's municipal population; or

20         2.  If there is no interlocal agreement, according to

21  the formula provided in s. 218.62.

22  

23  Any change in the distribution formula shall take effect on

24  the first day of any month that begins at least 60 days after

25  written notification of that change has been made to the

26  department.

27         Section 21.  Subsection (6) of section 212.0596,

28  Florida Statutes, is repealed.

29         Section 22.  It is the intent of the Legislature to

30  urge the United States Congress to consider adequate

31  protections for small businesses engaging in both offline and

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 1  online transactions from added costs, administrative burdens,

 2  and requirements imposed on intermediaries relating to the

 3  collection and remittance of sales and use tax.

 4         Section 23.  Emergency rules.--The executive director

 5  of the Department of Revenue is authorized, and all conditions

 6  are deemed met, to adopt emergency rules, under sections

 7  120.536(1) and 120.54(4), Florida Statutes, to implement this

 8  act. Notwithstanding any other law, the emergency rules shall

 9  remain effective for 6 months after the date of adoption and

10  may be renewed during the pendency of procedures to adopt

11  rules addressing the subject of the emergency rules.

12         Section 24.  This act shall take effect January 1,

13  2006.

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    Florida Senate - 2005                             CS for SB 56
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                              SB 56

 3                                 

 4  The following changes were made to SB 56:

 5  
    1)   Provides definitions for "Model 1 seller," "Model 2
 6       seller," and "Model 3 seller."

 7  2)   Expands the definition of "delivery charges" to include
         shipments that include exempt property and taxable
 8       property.

 9  3)   Provides that the prepaid calling service may be sourced
         at the customer's mobile telephone number, in addition to
10       other sourcing options.

11  4)   Removes the $5,000 local option surtax cap for all retail
         sales of tangible personal property, except for the sale
12       of motor vehicles, aircraft, boats, modular homes,
         manufactured homes or mobiles homes. The Agreement does
13       not allow local option caps except for the larger items
         of tangible personal property listed in the amendment.
14  
    (5)  Provides a sales tax exemption for farm equipment. The
15       Agreement does not allow differential tax rates. Under
         current law, farm equipment is taxed at the rate of 2.5
16       percent.

17  (6)  Provides language that conforms to the Agreement on the
         dealer collection allowance.
18  
    (7)  Authorizes the Department of Revenue to waive the $5
19       dealer registration fee for applications submitted
         through the central electronic registration system
20       provided by member states of the Streamlined Sales and
         Use Tax Agreement.
21  
    (8)  The definition of "Agreement" is amended to include the
22       Agreement as amended on November 19, 2003 and November
         16, 2004.
23  
    (9)  Deletes legislative intent language that is no longer
24       valid and adds new legislative intent language urging the
         United State Congress to consider adequate protections
25       for small businesses engaging in both on-line and
         off-line transactions from added costs and administrative
26       burdens relating to the collection and remittance of
         sales and use tax.
27  
    (10) Since Florida can no longer use our bracket system for
28       calculating tax, the Committee Substitute deletes
         references to brackets and adopts the rounding provisions
29       of the Agreement.

30  

31  

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