Florida Senate - 2020                                    SB 1112
       By Senator Taddeo
       40-00351C-20                                          20201112__
    1                        A bill to be entitled                      
    2         An act relating to a bottled water excise tax;
    3         revising the title of ch. 211, F.S.; creating part III
    4         of ch. 211, F.S., entitled “Tax on Extraction of Water
    5         for Bottling”; creating s. 211.40, F.S.; defining
    6         terms; creating s. 211.41, F.S.; imposing an excise
    7         tax upon bottled water operators; specifying the rate
    8         of the tax and the trust fund where tax proceeds are
    9         to be deposited; requiring that tax proceeds be
   10         separately accounted for and be used for certain
   11         purposes; creating s. 211.42, F.S.; specifying
   12         requirements for bottled water operators in filing
   13         monthly returns and declarations of estimated tax
   14         with, and remitting estimated taxes to, the Department
   15         of Revenue; authorizing the department to provide for
   16         credits of overpaid taxes and to grant extensions for
   17         filing and payment under certain circumstances;
   18         specifying the department’s rulemaking authority;
   19         creating s. 211.43, F.S.; specifying interest payable
   20         on unpaid taxes; specifying the delinquency penalty
   21         for failure to timely file a return; specifying the
   22         penalty for the substantial underpayment of taxes;
   23         specifying the interest payable on underpayments of
   24         estimated taxes; providing that a penalty or interest
   25         for underpayment of estimated tax may not be imposed
   26         under certain circumstances; providing construction;
   27         authorizing the department to settle or compromise
   28         taxes in accordance with certain provisions; creating
   29         s. 211.44, F.S.; authorizing the department to adopt
   30         rules; requiring local governments to cooperate with
   31         the department and furnish information without cost to
   32         the department for certain purposes; specifying
   33         recordkeeping requirements for bottled water
   34         operators; specifying the department’s authority to
   35         inspect, examine, and audit bottled water operator
   36         books and records, issue subpoenas, require testimony
   37         under oath or affirmation of certain persons, and
   38         apply for certain judicial orders; specifying
   39         requirements and procedures for the department in
   40         conducting audits, assessing deficiencies, and
   41         crediting or refunding overpayments; specifying
   42         procedures and requirements for claiming refunds;
   43         providing that amounts due remain a lien on certain
   44         property; specifying requirements and procedures for
   45         warrants and alias tax executions issued by the
   46         department; requiring that suits brought by the
   47         department for violations be brought in circuit court;
   48         creating s. 211.45, F.S.; providing criminal penalties
   49         for certain violations; providing an effective date.
   51  Be It Enacted by the Legislature of the State of Florida:
   53         Section 1. Chapter 211, Florida Statutes, entitled “Tax on
   54  Production of Oil and Gas and Severance of Solid Minerals,” is
   55  retitled “Tax on Production of Oil and Gas, Severance of Solid
   56  Minerals, and Extraction of Water for Bottling.”
   57         Section 2. The Division of Law Revision is directed to
   58  create part III of chapter 211, Florida Statutes, consisting of
   59  ss. 211.40-211.45, Florida Statutes, to be entitled “Tax on
   60  Extraction of Water for Bottling.”
   61         Section 3. Section 211.40, Florida Statutes, is created to
   62  read:
   63         211.40 Definitions.—As used in this part, the term:
   64         (1)“Bottled water operator” means a person engaged in the
   65  business of bottling or packaging for sale water extracted from
   66  waters of the state. The term does not include a person who
   67  bottles or packages water from a public water system as defined
   68  in s. 403.852(2).
   69         (2)“Department” means the Department of Revenue.
   70         (3)“Waters of the state” has the same meaning as the term
   71  “waters” as defined in s. 403.031(13).
   72         Section 4. Section 211.41, Florida Statutes, is created to
   73  read:
   74         211.41 Bottled water excise tax; distribution and use of
   75  tax proceeds.—
   76         (1)An excise tax is levied upon every person who acts as a
   77  bottled water operator at a rate of 12.5 cents per gallon of
   78  water extracted from waters of the state.
   79         (2)The proceeds of the tax imposed by this section must be
   80  deposited in the Wastewater Treatment and Stormwater Management
   81  Revolving Loan Trust Fund and must be accounted for separately
   82  within the fund. The tax proceeds must be used to provide grants
   83  and loans to local governmental agencies pursuant to s.
   84  403.1835, with priority to projects to connect existing onsite
   85  sewage treatment and disposal systems to central sewerage
   86  systems.
   87         Section 5. Section 211.42, Florida Statutes, is created to
   88  read:
   89         211.42 Returns; filing requirements; estimated tax
   90  declarations.—
   91         (1)Each bottled water operator shall prepare and submit to
   92  the department a return on or before the 25th day of each month
   93  showing the total amount of water extracted from waters of the
   94  state during the previous month, the source and county of
   95  extraction, the location of all facilities from which taxable
   96  water was extracted, and other information required by
   97  department rule. The department shall prescribe the form of the
   98  return by rule. The return must be filed on or before the last
   99  day prescribed for payment of the tax and must be signed and
  100  verified under oath by the bottled water operator or the bottled
  101  water operator’s authorized representative.
  102         (a) The return must include a statement of the tax due
  103  under this part and such other information as the department may
  104  reasonably require.
  105         (b) A return must be filed even though no tax is due. Any
  106  tax, penalty, or interest due must be remitted with the return.
  107         (2)(a) Each bottled water operator subject to the tax under
  108  this part shall file, on a form prescribed by the department, a
  109  declaration of estimated tax on or before the 25th day of the
  110  month following the month taxable water extraction occurred and
  111  shall remit to the department an amount equal to 90 percent of
  112  the estimated tax.
  113         (b) The declaration may be amended under rules prescribed
  114  by the department. The installment due must be increased or
  115  decreased to reflect the change in estimated tax occasioned by
  116  the amendment.
  117         (c) The department may provide for credit of any
  118  overpayment of amounts due under this part which the department
  119  determines to have been made against the installment required
  120  under this subsection.
  121         (d) Any estimated tax paid for a month is deemed assessed
  122  upon the last date for payment of the tax imposed under this
  123  part.
  124         (3) If any due date prescribed by this section falls on a
  125  Saturday, Sunday, or state or federal holiday, the last date
  126  prescribed for filing or payment is the next day that is not a
  127  Saturday, Sunday, or holiday. The date of receipt by the
  128  department, or the postmark date if mailed, determines the
  129  timeliness of payment or filing.
  130         (4) The department may grant an extension of time for
  131  payment or filing of a return upon written request submitted on
  132  or before the due date.
  133         Section 6. Section 211.43, Florida Statutes, is created to
  134  read:
  135         211.43 Interest and penalties; failure to pay tax or file
  136  return; estimated tax underpayments.—
  137         (1) If any part of the tax imposed by this part is not paid
  138  on or before the due date, interest must be added to the amount
  139  due at the rate of 12 percent per year from the due date until
  140  the date of payment.
  141         (2) A bottled water operator who fails to file the return
  142  required under s. 211.42 by the due date shall pay a delinquency
  143  penalty. If tax is due with the return, the delinquency penalty
  144  is 10 percent for each month, or portion thereof, of the amount
  145  of tax due with the return, not to exceed 50 percent. If no tax
  146  is due with the return, the delinquency penalty is $50 for each
  147  month, or portion thereof, during which the return was not
  148  filed, not to exceed $300 in aggregate. The amount of tax due
  149  with a return must be reduced by amounts properly creditable
  150  against the tax liability shown on the return on the date the
  151  return was due.
  152         (3) A bottled water operator who makes a substantial
  153  underpayment of the tax due under this part shall pay a penalty
  154  of 30 percent of the underpayment in addition to the delinquency
  155  penalty imposed under subsection (2). For purposes of this
  156  subsection, a substantial underpayment of tax is a deficiency of
  157  tax in an amount exceeding 35 percent of the total tax due for a
  158  month.
  159         (4)(a) Except as provided in paragraph (c), a bottled water
  160  operator is liable for interest at the rate of 12 percent per
  161  year and a penalty at the rate of 12 percent per year on any
  162  underpayment of estimated tax determined under this subsection.
  163         (b) An underpayment of estimated tax is the excess of:
  164         1. An amount equal to 90 percent of the tax for a month
  165  which is shown to be due on a return or, if no return is filed,
  166  90 percent of the tax finally due for the month, over
  167         2. The amount, if any, paid on or before the due date of
  168  the installment.
  169         (c) The period of underpayment of estimated tax begins on
  170  the date the installment is due and ends on the date the
  171  underpayment is paid. A payment of estimated tax is deemed a
  172  payment of a previous underpayment only to the extent the
  173  payment exceeds the amount of estimated tax installment due
  174  under subparagraph (b)1.
  175         (d) A penalty or interest for underpayment of estimated tax
  176  may not be imposed if the total amount of estimated tax paid on
  177  or before the installment due date equals or exceeds the lesser
  178  of:
  179         1. Ninety percent of the tax finally due for the month; or
  180         2. The amount of tax determined by the tax rate applicable
  181  for the month times the taxable production for the previous
  182  month.
  183         (5) Any penalty or interest imposed under this section is
  184  deemed assessed upon the assessment of the tax and must be
  185  collected and paid in the same manner as the tax.
  186         (6) Any penalty imposed by this section may be settled or
  187  compromised by the department for reasonable cause in accordance
  188  with s. 213.21. Interest imposed by this section may be settled
  189  or compromised only as authorized by s. 213.21.
  190         Section 7. Section 211.44, Florida Statutes, is created to
  191  read:
  192         211.44 Administration and enforcement; books and records;
  193  refunds.—
  194         (1) The department may adopt rules to administer this part,
  195  including prescribing the form and content of returns and
  196  reports.
  197         (2) All state, county, or municipal agencies, boards,
  198  bureaus, departments, or districts shall cooperate with the
  199  department and furnish any information the department deems
  200  necessary, without cost to the department, for the purposes of
  201  administering, collecting, or enforcing the tax imposed under
  202  this part.
  203         (3)(a) Each bottled water operator shall keep suitable
  204  books and records relating to the extraction of taxable waters
  205  of the state to enable the department to determine the amount of
  206  tax due under this part. Such books and records must be
  207  preserved until the time within which the department may make an
  208  assessment with respect thereto has expired in accordance with
  209  s. 213.35.
  210         (b) The department may inspect or examine the books,
  211  records, or papers of any bottled water operator which are
  212  reasonably required for the purposes of this part and may
  213  require such person to testify under oath or affirmation or to
  214  answer competent questions regarding such person’s business or
  215  extraction of taxable waters of the state.
  216         1. The department may issue subpoenas to compel third
  217  parties to testify or to produce records or other evidence held
  218  by them.
  219         2. Any duly authorized representative of the department may
  220  administer an oath or affirmation.
  221         3. If any person fails to comply with a request of the
  222  department for the inspection of records, fails to give
  223  testimony or respond to competent questions, or fails to comply
  224  with a subpoena, a circuit court having jurisdiction over such
  225  person may, upon application by the department, issue orders
  226  necessary to secure compliance.
  227         (c) All books and records required to be kept under this
  228  subsection must be available for inspection by the department
  229  upon written request during normal business hours.
  230         (4) The department may audit or examine the books and
  231  records of a bottled water operator to determine whether returns
  232  have been properly filed and tax has been properly paid. An
  233  audit may be commenced for any month for which the power of the
  234  department to make an assessment of amounts due under this part
  235  is available. An audit must be commenced by service of a written
  236  notice of intent to audit upon the bottled water operator,
  237  either in person or by certified mail. The date of personal
  238  contact or the date of the notice governs the period subject to
  239  audit. If there is jeopardy to the revenue and jeopardy is
  240  asserted in or with an assessment, the department must proceed
  241  in the manner specified for jeopardy assessment in s. 213.732.
  242         (5)(a) The department may assess, with or without an audit,
  243  any deficiency resulting from nonpayment or underpayment of the
  244  tax, interest, or penalties imposed by this part. The department
  245  shall inform the bottled water operator by written notice of the
  246  amount of any deficiency or overpayment revealed by an audit,
  247  including the tax, interest, or penalties due, and shall explain
  248  the basis for the determination.
  249         (b) The department may make an assessment under this part
  250  based upon the best information available to it. The department
  251  may make an assessment based upon an estimate of amounts due
  252  under this part if a bottled water operator fails to file a
  253  return, files a grossly incorrect or fraudulent return, or
  254  refuses to permit inspection of records. An assessment of the
  255  amounts due under this part is deemed prima facie correct and
  256  the bottled water operator has the burden of showing any error
  257  in it.
  258         (c) In the event of a deficiency, the department shall
  259  issue its written notice to a bottled water operator for the
  260  tax, penalties, or interest due. Full payment of the total
  261  amount assessed must be made in the manner prescribed by the
  262  department in its notice.
  263         (6)(a) The department may credit or refund any overpayments
  264  of amounts due under this part which are revealed by an audit or
  265  for which a timely claim for refund has been properly filed.
  266         (b) A claim for refund may be filed within the period
  267  specified in s. 215.26(2).
  268         (c) A claim for refund must be signed by the bottled water
  269  operator or the bottled water operator’s duly authorized
  270  representative, successor, or assignee and must include
  271  information the department requires to determine the correctness
  272  of the claim.
  273         (7)(a) Amounts due under this part remain a lien upon the
  274  property, assets, and effects of a bottled water operator until
  275  paid or until collection thereof is barred under s. 95.091 and
  276  may be recovered by the department, on behalf of the state, by
  277  an action in any county where the property, assets, or effects
  278  of the bottled water operator are located.
  279         (b) When any tax imposed by this part becomes delinquent or
  280  is otherwise in jeopardy, the department may issue a warrant for
  281  the full amount due or estimated to be due, including the tax,
  282  penalties, interest, and costs of collection. The warrant must
  283  be directed to each sheriff and may be recorded with the clerk
  284  of the circuit court in any county where the bottled water
  285  operator’s property is located. Upon recording, the clerk of the
  286  circuit court shall execute the warrant in the same manner
  287  prescribed by law for executions upon judgments and is entitled
  288  to the same fees for this service. Upon payment of the warrant,
  289  the department shall satisfy the lien of record within 30 days.
  290  Thereafter, any interested person may compel the department to
  291  satisfy the lien of record.
  292         (c) An alias tax execution may be issued whenever the
  293  department deems it necessary. Each alias tax execution must be
  294  so designated on its face and has the same force and effect as
  295  the original.
  296         (d) Tax executions may be levied upon any third party who
  297  is in possession or control of any assets of a delinquent
  298  bottled water operator or who is indebted to a delinquent
  299  bottled water operator. Such tax executions have the force and
  300  effect of a writ of garnishment. The third party shall pay the
  301  debt or deliver the assets of the delinquent bottled water
  302  operator to the department, and receipt by the department
  303  discharges the third party completely to the extent of the debt
  304  paid or assets surrendered to the department.
  305         (e) When any tax execution becomes void, the department may
  306  cancel it of record and shall do so upon the request of any
  307  interested person.
  308         (8) Any employee of the department may be designated by the
  309  executive director to make and sign assessments, tax warrants,
  310  and satisfactions of tax warrants.
  311         (9) Any suit brought by the department against any person
  312  for violating this part must be brought in circuit court.
  313         Section 8. Section 211.45, Florida Statutes, is created to
  314  read:
  315         211.45 Criminal penalties.—
  316         (1) A person who willfully fails to file a return or keep
  317  books or records on the extraction of taxable waters of the
  318  state, who files a fraudulent return, who willfully fails or
  319  refuses to produce books or records, or who willfully violates
  320  any provision of this part or any rule adopted by the department
  321  under this part commits a misdemeanor of the first degree,
  322  punishable as provided in s. 775.082 or s. 775.083.
  323         (2) A person who withholds tax due under this part and
  324  willfully fails to make remittance as required by this part or
  325  who purports to make payments due under this part but willfully
  326  fails to do so because the remittance fails to clear the bank or
  327  depository institution against which it is drawn commits a
  328  felony of the third degree, punishable as provided in s.
  329  775.082, s. 775.083, or s. 775.084.
  330         Section 9. This act shall take effect July 1, 2020.