Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. CS for SB 50
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
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       The Committee on Appropriations (Gruters) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 590 - 1024
    4  and insert:
    5         Section 3. Paragraph (c) of subsection (4) of section
    6  212.054, Florida Statutes, is amended to read:
    7         212.054 Discretionary sales surtax; limitations,
    8  administration, and collection.—
    9         (4)
   10         (c)1. Any dealer located in a county that does not impose a
   11  discretionary sales surtax, as well as a marketplace provider
   12  located outside of this state which makes or facilitates a
   13  substantial number of remote sales or a person located outside
   14  this state who is required to report remote sales, but who
   15  collects the surtax due to sales of tangible personal property
   16  or services delivered to a county imposing a surtax outside the
   17  county shall remit monthly the proceeds of the surtax to the
   18  department to be deposited into an account in the Discretionary
   19  Sales Surtax Clearing Trust Fund which is separate from the
   20  county surtax collection accounts. The department shall
   21  distribute funds in this account using a distribution factor
   22  determined for each county that levies a surtax and multiplied
   23  by the amount of funds in the account and available for
   24  distribution. The distribution factor for each county equals the
   25  product of:
   26         a. The county’s latest official population determined
   27  pursuant to s. 186.901;
   28         b. The county’s rate of surtax; and
   29         c. The number of months the county has levied a surtax
   30  during the most recent distribution period;
   31  
   32  divided by the sum of all such products of the counties levying
   33  the surtax during the most recent distribution period.
   34         2. The department shall compute distribution factors for
   35  eligible counties once each quarter and make appropriate
   36  quarterly distributions.
   37         3. A county that fails to timely provide the information
   38  required by this section to the department authorizes the
   39  department, by such action, to use the best information
   40  available to it in distributing surtax revenues to the county.
   41  If this information is unavailable to the department, the
   42  department may partially or entirely disqualify the county from
   43  receiving surtax revenues under this paragraph. A county that
   44  fails to provide timely information waives its right to
   45  challenge the department’s determination of the county’s share,
   46  if any, of revenues provided under this paragraph.
   47         Section 4. Section 212.0596, Florida Statutes, is amended
   48  to read:
   49         (Substantial rewording of section. See
   50         s. 212.0596, F.S., for present text.)
   51         212.0596Taxation of remote sales.
   52         (1) As used in this chapter, the term:
   53         (a) “Remote sale” means a retail sale of tangible personal
   54  property ordered by mail, telephone, the Internet, or other
   55  means of communication from a person who receives the order
   56  outside of this state and transports the property or causes the
   57  property to be transported from any jurisdiction, including this
   58  state, to a location in this state. For purposes of this
   59  paragraph, tangible personal property delivered to a location
   60  within this state is presumed to be used, consumed, distributed,
   61  or stored to be used or consumed in this state.
   62         (b) “Substantial number of remote sales” means any number
   63  of taxable remote sales in the previous calendar year in which
   64  the sum of the sales prices, as defined in s. 212.02(16),
   65  exceeded $100,000.
   66         (2) Every person making a substantial number of remote
   67  sales is a dealer for purposes of this chapter.
   68         (3) The department may establish by rule procedures for
   69  collecting the use tax from unregistered persons who but for
   70  their remote purchases would not be required to remit sales or
   71  use tax directly to the department. The procedures may provide
   72  for waiver of registration, provisions for irregular remittance
   73  of tax, elimination of the collection allowance, and
   74  nonapplication of local option surtaxes.
   75         (4)A marketplace provider that makes or facilitates a
   76  substantial number of remote sales or a person who is required
   77  to report remote sales is required to collect surtax when the
   78  taxable item of tangible personal property is delivered within a
   79  county imposing a surtax as provided in s. 212.054(3)(a).
   80         Section 5. Section 212.05965, Florida Statutes, is created
   81  to read:
   82         212.05965Taxation of marketplace sales.—
   83         (1) As used in this chapter, the term:
   84         (a)Marketplace” means any physical place or electronic
   85  medium through which tangible personal property is offered for
   86  sale.
   87         (b)Marketplace provider” means a person who facilitates a
   88  retail sale by a marketplace seller by listing or advertising
   89  for sale by the marketplace seller tangible personal property in
   90  a marketplace and who directly, or indirectly through agreements
   91  or arrangements with third parties, collects payment from the
   92  customer and transmits all or part of the payment to the
   93  marketplace seller, regardless of whether the marketplace
   94  provider receives compensation or other consideration in
   95  exchange for its services.
   96         1.The term does not include a person who solely provides
   97  travel agency services. As used in this subparagraph, the term
   98  “travel agency services” means arranging, booking, or otherwise
   99  facilitating for a commission, fee, or other consideration
  100  vacation or travel packages, rental cars, or other travel
  101  reservations; tickets for domestic or foreign travel by air,
  102  rail, ship, bus, or other mode of transportation; or hotel or
  103  other lodging accommodations.
  104         2.The term does not include a person who is a delivery
  105  network company unless the delivery network company is a
  106  registered dealer for purposes of this chapter and the delivery
  107  network company notifies all local merchants that sell through
  108  the delivery network company’s website or mobile application
  109  that the delivery network company is subject to the requirements
  110  of a marketplace provider under this section. As used in this
  111  subparagraph, the term:
  112         a.“Delivery network company” means a person who maintains
  113  a website or mobile application used to facilitate delivery
  114  services, the sale of local products, or both.
  115         b.“Delivery network courier” means a person who provides
  116  delivery services through a delivery network company website or
  117  mobile application using a personal means of transportation,
  118  such as a motor vehicle as defined in s. 320.01(1), bicycle,
  119  scooter, or other similar means of transportation; using public
  120  transportation; or by walking.
  121         c.Delivery services” means the pickup and delivery by a
  122  delivery network courier of one or more local products from a
  123  local merchant to a customer, which may include the selection,
  124  collection, and purchase of the local product in connection with
  125  the delivery. The term does not include any delivery requiring
  126  more than 75 miles of travel from the local merchant to the
  127  customer.
  128         d.“Local merchant” means a kitchen, a restaurant, or a
  129  third-party merchant, including a grocery store, retail store,
  130  convenience store, or business of another type, which is not
  131  under common ownership or control of the delivery network
  132  company.
  133         e.Local product” means any tangible personal property,
  134  including food, but excluding freight, mail, or a package to
  135  which postage has been affixed.
  136         3. The term does not include a payment processor business
  137  that is appointed to handle payment transactions from various
  138  channels, such as charge cards, credit cards, or debit cards,
  139  and whose sole activity with respect to marketplace sales is to
  140  handle payment transactions between two parties.
  141         (c) “Marketplace seller” means a person who has an
  142  agreement with a marketplace provider and who makes retail sales
  143  of tangible personal property through a marketplace owned,
  144  operated, or controlled by the marketplace provider.
  145         (2)A marketplace provider who has a physical presence in
  146  this state or who is making or facilitating through a
  147  marketplace a substantial number of remote sales as defined in
  148  s. 212.0596(1) is a dealer for purposes of this chapter.
  149         (3)A marketplace provider shall certify to its marketplace
  150  sellers that it will collect and remit the tax imposed under
  151  this chapter on taxable retail sales made through the
  152  marketplace. Such certification may be included in the agreement
  153  between the marketplace provider and the marketplace seller.
  154         (4)(a)A marketplace seller may not collect and remit the
  155  tax under this chapter on a taxable retail sale when the sale is
  156  made through the marketplace and the marketplace provider
  157  certifies, as required under subsection (3), that it will
  158  collect and remit such tax. A marketplace seller shall exclude
  159  such sales made through the marketplace from the marketplace
  160  seller’s tax return under s. 212.11.
  161         (b)1.A marketplace seller who has a physical presence in
  162  this state shall register and shall collect and remit the tax
  163  imposed under this chapter on all taxable retail sales made
  164  outside of the marketplace.
  165         2. A marketplace seller making a substantial number of
  166  remote sales as defined in s. 212.0596(1) shall register and
  167  shall collect and remit the tax imposed under this chapter on
  168  all taxable retail sales made outside of the marketplace. For
  169  the purposes of determining whether a marketplace seller made a
  170  substantial number of remote sales, the marketplace seller shall
  171  consider only those sales made outside of a marketplace.
  172         (5)(a)A marketplace provider shall allow the department to
  173  examine and audit its books and records pursuant to s. 212.13.
  174  For retail sales facilitated through a marketplace, the
  175  department may not examine or audit the books and records of
  176  marketplace sellers, nor may the department assess marketplace
  177  sellers except to the extent that the marketplace provider seeks
  178  relief under paragraph (b). The department may examine, audit,
  179  and assess a marketplace seller for retail sales made outside of
  180  a marketplace under paragraph (4)(b). This paragraph does not
  181  provide relief to a marketplace seller who is under audit; has
  182  been issued a bill, notice, or demand for payment; or is under
  183  an administrative or judicial proceeding before July 1, 2021.
  184         (b)The marketplace provider is relieved of liability for
  185  the tax on the retail sale and the marketplace seller or
  186  customer is liable for the tax imposed under this chapter if the
  187  marketplace provider demonstrates to the department’s
  188  satisfaction that the marketplace provider made a reasonable
  189  effort to obtain accurate information related to the retail
  190  sales facilitated through the marketplace from the marketplace
  191  seller, but that the failure to collect and pay the correct
  192  amount of tax imposed under this chapter was due to the
  193  provision of incorrect or incomplete information to the
  194  marketplace provider by the marketplace seller. This paragraph
  195  does not apply to a retail sale for which the marketplace
  196  provider is the seller if the marketplace provider and the
  197  marketplace seller are related parties or if transactions
  198  between a marketplace seller and marketplace buyer are not
  199  conducted at arm’s length.
  200         (6)For purposes of registration pursuant to s. 212.18, a
  201  marketplace is deemed a separate place of business.
  202         (7)A marketplace provider and a marketplace seller may
  203  agree by contract or otherwise that if a marketplace provider
  204  pays the tax imposed under this chapter on a retail sale
  205  facilitated through a marketplace for a marketplace seller as a
  206  result of an audit or otherwise, the marketplace provider has
  207  the right to recover such tax and any associated interest and
  208  penalties from the marketplace seller.
  209         (8)This section may not be construed to authorize the
  210  state to collect sales tax from both the marketplace provider
  211  and the marketplace seller on the same retail sale.
  212         (9)Chapter 213 applies to the administration of this
  213  section to the extent that chapter does not conflict with this
  214  section.
  215         Section 6. Effective April 1, 2022, subsections (10) and
  216  (11) are added to section 212.05965, Florida Statutes, as
  217  created by this act, to read:
  218         212.05965 Taxation of marketplace sales.—
  219         (10) Notwithstanding any other law, the marketplace
  220  provider is also responsible for collecting and remitting any
  221  prepaid wireless E911 fee under s. 365.172, waste tire fee under
  222  s. 403.718, and lead-acid battery fee under s. 403.7185 at the
  223  time of sale for taxable retail sales made through its
  224  marketplace.
  225         (11) The marketplace provider and the marketplace seller
  226  may contractually agree to have the marketplace seller collect
  227  and remit all applicable taxes and fees if the marketplace
  228  seller:
  229         (a) Has annual U.S. gross sales of more than $1 billion,
  230  including the gross sales of any related entities, and in the
  231  case of franchised entities, including the combined sales of all
  232  franchisees of a single franchisor;
  233         (b) Provides evidence to the marketplace provider that it
  234  is registered under s. 212.18; and
  235         (c) Notifies the department in a manner prescribed by the
  236  department that the marketplace seller will collect and remit
  237  all applicable taxes and fees on its sales through the
  238  marketplace and is liable for failure to collect or remit
  239  applicable taxes and fees on its sales.
  240         Section 7. Paragraph (c) of subsection (2) and paragraph
  241  (a) of subsection (5) of section 212.06, Florida Statutes, are
  242  amended to read:
  243         212.06 Sales, storage, use tax; collectible from dealers;
  244  “dealer” defined; dealers to collect from purchasers;
  245  legislative intent as to scope of tax.—
  246         (2)
  247         (c) The term “dealer” is further defined to mean every
  248  person, as used in this chapter, who sells at retail or who
  249  offers for sale at retail, or who has in his or her possession
  250  for sale at retail; or for use, consumption, or distribution; or
  251  for storage to be used or consumed in this state, tangible
  252  personal property as defined herein, including a retailer who
  253  transacts a substantial number of remote sales or a person who
  254  is a marketplace provider making or facilitating a substantial
  255  number of remote sales mail order sale.
  256         (5)(a)1. Except as provided in subparagraph 2., it is not
  257  the intention of this chapter to levy a tax upon tangible
  258  personal property imported, produced, or manufactured in this
  259  state for export, provided that tangible personal property may
  260  not be considered as being imported, produced, or manufactured
  261  for export unless the importer, producer, or manufacturer
  262  delivers the same to a licensed exporter for exporting or to a
  263  common carrier for shipment outside the state or mails the same
  264  by United States mail to a destination outside the state; or, in
  265  the case of aircraft being exported under their own power to a
  266  destination outside the continental limits of the United States,
  267  by submission to the department of a duly signed and validated
  268  United States customs declaration, showing the departure of the
  269  aircraft from the continental United States; and further with
  270  respect to aircraft, the canceled United States registry of said
  271  aircraft; or in the case of parts and equipment installed on
  272  aircraft of foreign registry, by submission to the department of
  273  documentation, the extent of which shall be provided by rule,
  274  showing the departure of the aircraft from the continental
  275  United States; nor is it the intention of this chapter to levy a
  276  tax on any sale which the state is prohibited from taxing under
  277  the Constitution or laws of the United States. Every retail sale
  278  made to a person physically present at the time of sale shall be
  279  presumed to have been delivered in this state.
  280         2.a. Notwithstanding subparagraph 1., a tax is levied on
  281  each sale of tangible personal property to be transported to a
  282  cooperating state as defined in sub-subparagraph c., at the rate
  283  specified in sub-subparagraph d. However, a Florida dealer will
  284  be relieved from the requirements of collecting taxes pursuant
  285  to this subparagraph if the Florida dealer obtains from the
  286  purchaser an affidavit setting forth the purchaser’s name,
  287  address, state taxpayer identification number, and a statement
  288  that the purchaser is aware of his or her state’s use tax laws,
  289  is a registered dealer in Florida or another state, or is
  290  purchasing the tangible personal property for resale or is
  291  otherwise not required to pay the tax on the transaction. The
  292  department may, by rule, provide a form to be used for the
  293  purposes set forth herein.
  294         b. For purposes of this subparagraph, “a cooperating state”
  295  is one determined by the executive director of the department to
  296  cooperate satisfactorily with this state in collecting taxes on
  297  remote mail order sales. No state shall be so determined unless
  298  it meets all the following minimum requirements:
  299         (I) It levies and collects taxes on remote mail order sales
  300  of property transported from that state to persons in this
  301  state, as described in s. 212.0596, upon request of the
  302  department.
  303         (II) The tax so collected shall be at the rate specified in
  304  s. 212.05, not including any local option or tourist or
  305  convention development taxes collected pursuant to s. 125.0104
  306  or this chapter.
  307         (III) Such state agrees to remit to the department all
  308  taxes so collected no later than 30 days from the last day of
  309  the calendar quarter following their collection.
  310         (IV) Such state authorizes the department to audit dealers
  311  within its jurisdiction who make remote mail order sales that
  312  are the subject of s. 212.0596, or makes arrangements deemed
  313  adequate by the department for auditing them with its own
  314  personnel.
  315         (V) Such state agrees to provide to the department records
  316  obtained by it from retailers or dealers in such state showing
  317  delivery of tangible personal property into this state upon
  318  which no sales or use tax has been paid in a manner similar to
  319  that provided in sub-subparagraph g.
  320         c. For purposes of this subparagraph, “sales of tangible
  321  personal property to be transported to a cooperating state”
  322  means remote mail order sales to a person who is in the
  323  cooperating state at the time the order is executed, from a
  324  dealer who receives that order in this state.
  325         d. The tax levied by sub-subparagraph a. shall be at the
  326  rate at which such a sale would have been taxed pursuant to the
  327  cooperating state’s tax laws if consummated in the cooperating
  328  state by a dealer and a purchaser, both of whom were physically
  329  present in that state at the time of the sale.
  330         e. The tax levied by sub-subparagraph a., when collected,
  331  shall be held in the State Treasury in trust for the benefit of
  332  the cooperating state and shall be paid to it at a time agreed
  333  upon between the department, acting for this state, and the
  334  cooperating state or the department or agency designated by it
  335  to act for it; however, such payment shall in no event be made
  336  later than 30 days from the last day of the calendar quarter
  337  after the tax was collected. Funds held in trust for the benefit
  338  of a cooperating state shall not be subject to the service
  339  charges imposed by s. 215.20.
  340         f. The department is authorized to perform such acts and to
  341  provide such cooperation to a cooperating state with reference
  342  to the tax levied by sub-subparagraph a. as is required of the
  343  cooperating state by sub-subparagraph b.
  344         g. In furtherance of this act, dealers selling tangible
  345  personal property for delivery in another state shall make
  346  available to the department, upon request of the department,
  347  records of all tangible personal property so sold. Such records
  348  shall include a description of the property, the name and
  349  address of the purchaser, the name and address of the person to
  350  whom the property was sent, the purchase price of the property,
  351  information regarding whether sales tax was paid in this state
  352  on the purchase price, and such other information as the
  353  department may by rule prescribe.
  354         Section 8. Paragraph (b) of subsection (1) of section
  355  212.07, Florida Statutes, is amended to read:
  356         212.07 Sales, storage, use tax; tax added to purchase
  357  price; dealer not to absorb; liability of purchasers who cannot
  358  prove payment of the tax; penalties; general exemptions.—
  359         (1)
  360         (b) A resale must be in strict compliance with s. 212.18
  361  and the rules and regulations adopted thereunder. A dealer who
  362  makes a sale for resale that is not in strict compliance with s.
  363  212.18 and the rules and regulations adopted thereunder is
  364  liable for and must pay the tax. A dealer who makes a sale for
  365  resale shall document the exempt nature of the transaction, as
  366  established by rules adopted by the department, by retaining a
  367  copy of the purchaser’s resale certificate. In lieu of
  368  maintaining a copy of the certificate, a dealer may document,
  369  before the time of sale, an authorization number provided
  370  telephonically or electronically by the department, or by such
  371  other means established by rule of the department. The dealer
  372  may rely on a resale certificate issued pursuant to s.
  373  212.18(3)(e) s. 212.18(3)(d), valid at the time of receipt from
  374  the purchaser, without seeking annual verification of the resale
  375  certificate if the dealer makes recurring sales to a purchaser
  376  in the normal course of business on a continual basis. For
  377  purposes of this paragraph, “recurring sales to a purchaser in
  378  the normal course of business” refers to a sale in which the
  379  dealer extends credit to the purchaser and records the debt as
  380  an account receivable, or in which the dealer sells to a
  381  purchaser who has an established cash or C.O.D. account, similar
  382  to an open credit account. For purposes of this paragraph,
  383  purchases are made from a selling dealer on a continual basis if
  384  the selling dealer makes, in the normal course of business,
  385  sales to the purchaser at least once in every 12-month period. A
  386  dealer may, through the informal protest provided for in s.
  387  213.21 and the rules of the department, provide the department
  388  with evidence of the exempt status of a sale. Consumer
  389  certificates of exemption executed by those exempt entities that
  390  were registered with the department at the time of sale, resale
  391  certificates provided by purchasers who were active dealers at
  392  the time of sale, and verification by the department of a
  393  purchaser’s active dealer status at the time of sale in lieu of
  394  a resale certificate shall be accepted by the department when
  395  submitted during the protest period, but may not be accepted in
  396  any proceeding under chapter 120 or any circuit court action
  397  instituted under chapter 72.
  398         Section 9. Paragraphs (f) is added to subsection (4) of
  399  section 212.11, Florida Statutes, to read:
  400         212.11 Tax returns and regulations.—
  401         (4)
  402         (f)A marketplace provider that makes or facilitates a
  403  substantial number of remote sales or a person who is required
  404  to report remote sales shall file returns and pay taxes by
  405  electronic means under s. 213.755.
  406         Section 10. Paragraph (a) of subsection (1) and paragraph
  407  (a) of subsection (5) of section 212.12, Florida Statutes, are
  408  amended to read:
  409         212.12 Dealer’s credit for collecting tax; penalties for
  410  noncompliance; powers of Department of Revenue in dealing with
  411  delinquents; brackets applicable to taxable transactions;
  412  records required.—
  413         (1)(a)1. Notwithstanding any other law and for the purpose
  414  of compensating persons granting licenses for and the lessors of
  415  real and personal property taxed hereunder, for the purpose of
  416  compensating dealers in tangible personal property, for the
  417  purpose of compensating dealers providing communication services
  418  and taxable services, for the purpose of compensating owners of
  419  places where admissions are collected, and for the purpose of
  420  compensating remitters of any taxes or fees reported on the same
  421  documents utilized for the sales and use tax, as compensation
  422  for the keeping of prescribed records, filing timely tax
  423  returns, and the proper accounting and remitting of taxes by
  424  them, such seller, person, lessor, dealer, owner, and remitter
  425  (except dealers who make mail order sales) who files the return
  426  required pursuant to s. 212.11 only by electronic means and who
  427  pays the amount due on such return only by electronic means
  428  shall be allowed 2.5 percent of the amount of the tax due,
  429  accounted for, and remitted to the department in the form of a
  430  deduction. However, if the amount of the tax due and remitted to
  431  the department by electronic means for the reporting period
  432  exceeds $1,200, an allowance is not allowed for all amounts in
  433  excess of $1,200. For purposes of this paragraph subparagraph,
  434  the term “electronic means” has the same meaning as provided in
  435  s. 213.755(2)(c).
  436         2. The executive director of the department is authorized
  437  to negotiate a collection allowance, pursuant to rules
  438  promulgated by the department, with a dealer who makes mail
  439  order sales. The rules of the department shall provide
  440  guidelines for establishing the collection allowance based upon
  441  the dealer’s estimated costs of collecting the tax, the volume
  442  and value of the dealer’s mail order sales to purchasers in this
  443  state, and the administrative and legal costs and likelihood of
  444  achieving collection of the tax absent the cooperation of the
  445  dealer. However, in no event shall the collection allowance
  446  negotiated by the executive director exceed 10 percent of the
  447  tax remitted for a reporting period.
  448         (5)(a) The department is authorized to audit or inspect the
  449  records and accounts of dealers defined herein, including audits
  450  or inspections of dealers who make remote mail order sales to
  451  the extent permitted by another state, and to correct by credit
  452  any overpayment of tax, and, in the event of a deficiency, an
  453  assessment shall be made and collected. No administrative
  454  finding of fact is necessary prior to the assessment of any tax
  455  deficiency.
  456         Section 11. Present paragraphs (c) through (f) of
  457  subsection (3) of section 212.18, Florida Statutes, are
  458  redesignated as paragraphs (d) through (g), respectively, a new
  459  paragraph (c) is added to that subsection, and present paragraph
  460  (f) of that subsection is amended, to read:
  461         212.18 Administration of law; registration of dealers;
  462  rules.—
  463         (3)
  464         (c) A marketplace provider that makes or facilitates a
  465  substantial number of remote sales or a person who is required
  466  to report remote sales must file with the department an
  467  application for a certificate of registration electronically.
  468         (g)(f) As used in this paragraph, the term “exhibitor”
  469  means a person who enters into an agreement authorizing the
  470  display of tangible personal property or services at a
  471  convention or a trade show. The following provisions apply to
  472  the registration of exhibitors as dealers under this chapter:
  473         1. An exhibitor whose agreement prohibits the sale of
  474  tangible personal property or services subject to the tax
  475  imposed in this chapter is not required to register as a dealer.
  476         2. An exhibitor whose agreement provides for the sale at
  477  wholesale only of tangible personal property or services subject
  478  to the tax imposed by this chapter must obtain a resale
  479  certificate from the purchasing dealer but is not required to
  480  register as a dealer.
  481         3. An exhibitor whose agreement authorizes the retail sale
  482  of tangible personal property or services subject to the tax
  483  imposed by this chapter must register as a dealer and collect
  484  the tax on such sales.
  485         4. An exhibitor who makes a remote mail order sale pursuant
  486  to s. 212.0596 must register as a dealer.
  487  
  488  A person who conducts a convention or a trade show must make his
  489  or her exhibitor’s agreements available to the department for
  490  inspection and copying.
  491         Section 12. Subsection (4) of section 212.20, Florida
  492  Statutes, is amended to read:
  493         212.20 Funds collected, disposition; additional powers of
  494  department; operational expense; refund of taxes adjudicated
  495  unconstitutionally collected.—
  496         (4) When there has been a final adjudication that any tax
  497  pursuant to s. 212.0596 or s. 212.05965 was levied, collected,
  498  or both, contrary to the Constitution of the United States or
  499  the State Constitution, the department shall, in accordance with
  500  rules, determine, based upon claims for refund and other
  501  evidence and information, who paid such tax or taxes, and refund
  502  to each such person the amount of tax paid. For purposes of this
  503  subsection, a “final adjudication” is a decision of a court of
  504  competent jurisdiction from which no appeal can be taken or from
  505  which the official or officials of this state with authority to
  506  make such decisions has or have decided not to appeal.
  507         Section 13. Subsection (5) of section 213.27, Florida
  508  Statutes, is amended to read:
  509         213.27 Contracts with debt collection agencies and certain
  510  vendors.—
  511         (5) The department may, for the purpose of ascertaining the
  512  amount of or collecting any taxes due from a person making or
  513  facilitating remote sales under s. 212.0596 or s. 212.05965
  514  doing mail order business in this state, contract with any
  515  auditing agency doing business within or without this state for
  516  the purpose of conducting an audit of such person mail order
  517  business; however, such audit agency may not conduct an audit on
  518  behalf of the department of any person domiciled in this state,
  519  person registered for sales and use tax purposes in this state,
  520  or corporation filing a Florida corporate tax return, if any
  521  such person or corporation objects to such audit in writing to
  522  the department and the auditing agency. The department shall
  523  notify the taxpayer by mail at least 30 days before the
  524  department assigns the collection of such taxes.
  525         Section 14. For the purpose of incorporating the amendment
  526  made by this act to section 212.054, Florida Statutes, in
  527  references thereto, paragraph (c) of subsection (2), paragraph
  528  (c) of subsection (3), paragraph (c) of subsection (8), and
  529  paragraph (c) of subsection (9) of section 212.055, Florida
  530  Statutes, are reenacted to read:
  531         212.055 Discretionary sales surtaxes; legislative intent;
  532  authorization and use of proceeds.—It is the legislative intent
  533  that any authorization for imposition of a discretionary sales
  534  surtax shall be published in the Florida Statutes as a
  535  subsection of this section, irrespective of the duration of the
  536  levy. Each enactment shall specify the types of counties
  537  authorized to levy; the rate or rates which may be imposed; the
  538  maximum length of time the surtax may be imposed, if any; the
  539  procedure which must be followed to secure voter approval, if
  540  required; the purpose for which the proceeds may be expended;
  541  and such other requirements as the Legislature may provide.
  542  Taxable transactions and administrative procedures shall be as
  543  provided in s. 212.054.
  544         (2) LOCAL GOVERNMENT INFRASTRUCTURE SURTAX.—
  545         (c) Pursuant to s. 212.054(4), the proceeds of the surtax
  546  levied under this subsection shall be distributed to the county
  547  and the municipalities within such county in which the surtax
  548  was collected, according to:
  549         1. An interlocal agreement between the county governing
  550  authority and the governing bodies of the municipalities
  551  representing a majority of the county’s municipal population,
  552  which agreement may include a school district with the consent
  553  of the county governing authority and the governing bodies of
  554  the municipalities representing a majority of the county’s
  555  municipal population; or
  556         2. If there is no interlocal agreement, according to the
  557  formula provided in s. 218.62.
  558  
  559  Any change in the distribution formula must take effect on the
  560  first day of any month that begins at least 60 days after
  561  written notification of that change has been made to the
  562  department.
  563         (3) SMALL COUNTY SURTAX.—
  564         (c) Pursuant to s. 212.054(4), the proceeds of the surtax
  565  levied under this subsection shall be distributed to the county
  566  and the municipalities within the county in which the surtax was
  567  collected, according to:
  568         1. An interlocal agreement between the county governing
  569  authority and the governing bodies of the municipalities
  570  representing a majority of the county’s municipal population,
  571  which agreement may include a school district with the consent
  572  of the county governing authority and the governing bodies of
  573  the municipalities representing a majority of the county’s
  574  municipal population; or
  575         2. If there is no interlocal agreement, according to the
  576  formula provided in s. 218.62.
  577  
  578  Any change in the distribution formula shall take effect on the
  579  first day of any month that begins at least 60 days after
  580  written notification of that change has been made to the
  581  department.
  582         (8) EMERGENCY FIRE RESCUE SERVICES AND FACILITIES SURTAX.—
  583         (c) Pursuant to s. 212.054(4), the proceeds of the
  584  discretionary sales surtax collected under this subsection, less
  585  an administrative fee that may be retained by the Department of
  586  Revenue, shall be distributed by the department to the county.
  587  The county shall distribute the proceeds it receives from the
  588  department to each local government entity providing emergency
  589  fire rescue services in the county. The surtax proceeds, less an
  590  administrative fee not to exceed 2 percent of the surtax
  591  collected, shall be distributed by the county based on each
  592  entity’s average annual expenditures for fire control and
  593  emergency fire rescue services in the 5 fiscal years preceding
  594  the fiscal year in which the surtax takes effect in proportion
  595  to the average annual total of the expenditures for such
  596  entities in the 5 fiscal years preceding the fiscal year in
  597  which the surtax takes effect. The county shall revise the
  598  distribution proportions to reflect a change in the service area
  599  of an entity receiving a distribution of the surtax proceeds. If
  600  an entity declines its share of surtax revenue, such revenue
  601  shall be redistributed proportionally to the entities that are
  602  participating in the sharing of such revenue based on each
  603  participating entity’s average annual expenditures for fire
  604  control and emergency fire rescue services in the preceding 5
  605  fiscal years in proportion to the average annual total of the
  606  expenditures for the participating entities in the preceding 5
  607  fiscal years.
  608         (9) PENSION LIABILITY SURTAX.—
  609         (c) Pursuant to s. 212.054(4), the proceeds of the surtax
  610  collected under this subsection, less an administrative fee that
  611  may be retained by the department, shall be distributed by the
  612  department to the local government.
  613         Section 15. This act first applies to remote sales made or
  614  facilitated on or after July 1, 2021, by a person who made or
  615  facilitated a substantial number of remote sales in calendar
  616  year 2020. A marketplace seller shall consider only those sales
  617  made outside of a marketplace to determine whether it made a
  618  substantial number of remote sales in calendar year 2020.
  619         Section 16. (1)A person subject to the requirements of
  620  this act to collect and remit the tax under chapter 212, Florida
  621  Statutes, on remote sales is relieved of liability for tax,
  622  penalty, and interest due on remote sales that occurred before
  623  the effective date of this act, provided that the person
  624  registers with the department before October 1, 2021. This
  625  subsection is also intended to provide relief to a marketplace
  626  seller for remote sales made before the effective date of this
  627  act which were facilitated by a marketplace provider. For a
  628  marketplace provider with a physical presence in this state,
  629  this subsection is intended to provide relief only for sales
  630  facilitated by the marketplace provider on behalf of a
  631  marketplace seller. This subsection does not apply to a person
  632  who is under audit; has been issued a bill, notice, or demand
  633  for payment; or is under an administrative or judicial
  634  proceeding before July 1, 2021.
  635         (2)The department may not use data received from
  636  registered marketplace providers or persons making remote sales
  637  for the purposes of identifying use tax liabilities occurring
  638  before July 1, 2021, from unregistered persons who, but for
  639  their purchases from the registered taxpayer, would not be
  640  required to remit sales or use tax directly to the department.
  641  This subsection does not apply to a person who is under audit;
  642  has been issued a bill, notice, or demand for payment; or is
  643  under an administrative or judicial proceeding before July 1,
  644  2021.
  645  
  646  ================= T I T L E  A M E N D M E N T ================
  647  And the title is amended as follows:
  648         Delete lines 2 - 57
  649  and insert:
  650         An act relating to taxes and fees on remote sales;
  651         amending s. 212.02, F.S.; expanding the definition of
  652         the term “retail sale” to include sales facilitated
  653         through a marketplace; conforming a provision to
  654         changes made by the act; amending s. 212.05, F.S.;
  655         conforming a provision to changes made by the act;
  656         amending s. 212.054, F.S.; requiring marketplace
  657         providers and persons located outside of this state to
  658         remit discretionary sales surtax when delivering
  659         tangible personal property to a county imposing a
  660         surtax; amending s. 212.0596, F.S.; replacing
  661         provisions relating to the taxation of mail order
  662         sales with provisions relating to the taxation of
  663         remote sales; defining the terms “remote sale” and
  664         “substantial number of remote sales”; providing that
  665         every person making a substantial number of remote
  666         sales is a dealer for purposes of the sales and use
  667         tax; authorizing the Department of Revenue to adopt
  668         rules for collecting use taxes from unregistered
  669         persons; requiring marketplace providers and persons
  670         located outside of this state to remit discretionary
  671         sales surtax when delivering tangible personal
  672         property to a county imposing a surtax; creating s.
  673         212.05965, F.S.; defining terms; providing that
  674         certain marketplace providers are dealers for purposes
  675         of the sales and use tax; requiring marketplace
  676         providers to provide a certain certification to their
  677         marketplace sellers; specifying requirements for
  678         marketplace sellers; requiring marketplace providers
  679         to allow the Department of Revenue to examine and
  680         audit their books and records; specifying the
  681         examination and audit authority of the department;
  682         providing that a marketplace seller, rather than the
  683         marketplace provider, is liable for sales tax
  684         collection and remittance under certain circumstances;
  685         authorizing marketplace providers and marketplace
  686         sellers to enter into agreements for the recovery of
  687         certain taxes, interest, and penalties; providing
  688         construction and applicability; amending s. 212.05965,
  689         F.S.; requiring marketplace providers to collect and
  690         remit certain additional fees at the time of sale;
  691         authorizing marketplace providers and marketplace
  692         sellers to contractually agree for marketplace sellers
  693         to collect applicable taxes and fees; specifying
  694         requirements for marketplace sellers who collect such
  695         taxes and fees; providing applicability; providing for
  696         liability of sellers who fail to collect or remit such
  697         taxes and fees; amending s. 212.06, F.S.; revising the
  698         definition of the term “dealer”; conforming provisions
  699         to changes made by the act; amending 212.07, F.S.;
  700         conforming a cross-reference; amending 212.11, F.S.;
  701         requiring a marketplace provider or a person required
  702         to report remote sales to file returns and pay taxes
  703         electronically; amending s. 212.12, F.S.; deleting the
  704         authority of the department’s executive director to
  705         negotiate a collection allowance with certain dealers;
  706         conforming provisions to changes made by the act;
  707         amending s. 212.18, F.S.; requiring a marketplace
  708         provider or a person required to report remote sales
  709         to file a registration application electronically;
  710         conforming a provision to changes made by the act;
  711         amending s. 212.20, F.S.; providing applicability of
  712         requirements for refund of taxes adjudicated
  713         unconstitutionally collected to taxes levied or
  714         collected pursuant to marketplace provisions; amending
  715         s. 213.27, F.S.; conforming provisions to changes made
  716         by the act; reenacting s. 212.055, F.S., relating to
  717         discretionary sales surtaxes, to incorporate the
  718         amendment made to s. 212.054, F.S., in references
  719         thereto; providing applicability; providing relief to
  720         certain persons for liability for tax, penalty, and
  721         interest due on certain remote sales and owed on
  722         certain purchases that occurred before the effective
  723         date of the act; providing applicability; prohibiting
  724         the department from using data received from
  725         marketplace providers or persons making remote sales
  726         for certain purposes; providing applicability;