Florida Senate - 2021                                      SB 50
       By Senator Gruters
       23-00343A-21                                            202150__
    1                        A bill to be entitled                      
    2         An act relating to the sales and use tax; amending s.
    3         212.02, F.S.; expanding the definition of the term
    4         “retail sale” to include sales facilitated through a
    5         marketplace; conforming a provision to changes made by
    6         the act; amending s. 212.05, F.S.; conforming a
    7         provision to changes made by the act; amending s.
    8         212.0596, F.S.; replacing provisions relating to the
    9         taxation of mail order sales with provisions relating
   10         to the taxation of remote sales; defining the terms
   11         “remote sale” and “substantial number of remote
   12         sales”; providing that every person making a
   13         substantial number of remote sales is a dealer for
   14         purposes of the sales and use tax; creating s.
   15         212.05965, F.S.; defining terms; providing that
   16         certain marketplace providers are dealers for purposes
   17         of the sales and use tax; requiring marketplace
   18         providers to provide a certain certification to their
   19         marketplace sellers; specifying requirements for
   20         marketplace sellers; requiring marketplace providers
   21         to allow the Department of Revenue to examine and
   22         audit their books and records; specifying the
   23         examination and audit authority of the department;
   24         providing that a marketplace seller, rather than the
   25         marketplace provider, is liable for sales tax
   26         collection and remittance under certain circumstances;
   27         authorizing marketplace providers and marketplace
   28         sellers to enter into agreements for the recovery of
   29         certain taxes, interest, and penalties; providing
   30         construction and applicability; amending s. 212.06,
   31         F.S.; revising the definition of the term “dealer”;
   32         conforming provisions to changes made by the act;
   33         amending s. 212.12, F.S.; deleting the authority of
   34         the department’s executive director to negotiate a
   35         collection allowance with certain dealers; conforming
   36         provisions to changes made by the act; amending s.
   37         212.18, F.S.; conforming a provision to changes made
   38         by the act; amending s. 212.20, F.S.; providing
   39         applicability of requirements for refund of taxes
   40         adjudicated unconstitutionally collected to taxes
   41         levied or collected pursuant to marketplace
   42         provisions; amending s. 213.27, F.S.; conforming
   43         provisions to changes made by the act; providing
   44         applicability; authorizing the department to adopt
   45         emergency rules; providing for expiration of that
   46         authority; providing for severability; providing
   47         effective dates.
   49  Be It Enacted by the Legislature of the State of Florida:
   51         Section 1. Paragraph (e) of subsection (14) of section
   52  212.02, Florida Statutes, is amended, and paragraph (f) is added
   53  to that subsection, to read:
   54         212.02 Definitions.—The following terms and phrases when
   55  used in this chapter have the meanings ascribed to them in this
   56  section, except where the context clearly indicates a different
   57  meaning:
   58         (14)
   59         (e) The term “retail sale” includes a remote mail order
   60  sale, as defined in s. 212.0596(1).
   61         (f)The term “retail sale” includes a sale facilitated
   62  through a marketplace as defined in s. 212.05965(1).
   63         Section 2. Section 212.05, Florida Statutes, is amended to
   64  read:
   65         212.05 Sales, storage, use tax.—It is hereby declared to be
   66  the legislative intent that every person is exercising a taxable
   67  privilege who engages in the business of selling tangible
   68  personal property at retail in this state, including the
   69  business of making or facilitating remote mail order sales;, or
   70  who rents or furnishes any of the things or services taxable
   71  under this chapter;, or who stores for use or consumption in
   72  this state any item or article of tangible personal property as
   73  defined herein and who leases or rents such property within the
   74  state.
   75         (1) For the exercise of such privilege, a tax is levied on
   76  each taxable transaction or incident, which tax is due and
   77  payable as follows:
   78         (a)1.a. At the rate of 6 percent of the sales price of each
   79  item or article of tangible personal property when sold at
   80  retail in this state, computed on each taxable sale for the
   81  purpose of remitting the amount of tax due the state, and
   82  including each and every retail sale.
   83         b. Each occasional or isolated sale of an aircraft, boat,
   84  mobile home, or motor vehicle of a class or type which is
   85  required to be registered, licensed, titled, or documented in
   86  this state or by the United States Government shall be subject
   87  to tax at the rate provided in this paragraph. The department
   88  shall by rule adopt any nationally recognized publication for
   89  valuation of used motor vehicles as the reference price list for
   90  any used motor vehicle which is required to be licensed pursuant
   91  to s. 320.08(1), (2), (3)(a), (b), (c), or (e), or (9). If any
   92  party to an occasional or isolated sale of such a vehicle
   93  reports to the tax collector a sales price which is less than 80
   94  percent of the average loan price for the specified model and
   95  year of such vehicle as listed in the most recent reference
   96  price list, the tax levied under this paragraph shall be
   97  computed by the department on such average loan price unless the
   98  parties to the sale have provided to the tax collector an
   99  affidavit signed by each party, or other substantial proof,
  100  stating the actual sales price. Any party to such sale who
  101  reports a sales price less than the actual sales price is guilty
  102  of a misdemeanor of the first degree, punishable as provided in
  103  s. 775.082 or s. 775.083. The department shall collect or
  104  attempt to collect from such party any delinquent sales taxes.
  105  In addition, such party shall pay any tax due and any penalty
  106  and interest assessed plus a penalty equal to twice the amount
  107  of the additional tax owed. Notwithstanding any other provision
  108  of law, the Department of Revenue may waive or compromise any
  109  penalty imposed pursuant to this subparagraph.
  110         2. This paragraph does not apply to the sale of a boat or
  111  aircraft by or through a registered dealer under this chapter to
  112  a purchaser who, at the time of taking delivery, is a
  113  nonresident of this state, does not make his or her permanent
  114  place of abode in this state, and is not engaged in carrying on
  115  in this state any employment, trade, business, or profession in
  116  which the boat or aircraft will be used in this state, or is a
  117  corporation none of the officers or directors of which is a
  118  resident of, or makes his or her permanent place of abode in,
  119  this state, or is a noncorporate entity that has no individual
  120  vested with authority to participate in the management,
  121  direction, or control of the entity’s affairs who is a resident
  122  of, or makes his or her permanent abode in, this state. For
  123  purposes of this exemption, either a registered dealer acting on
  124  his or her own behalf as seller, a registered dealer acting as
  125  broker on behalf of a seller, or a registered dealer acting as
  126  broker on behalf of the purchaser may be deemed to be the
  127  selling dealer. This exemption shall not be allowed unless:
  128         a. The purchaser removes a qualifying boat, as described in
  129  sub-subparagraph f., from the state within 90 days after the
  130  date of purchase or extension, or the purchaser removes a
  131  nonqualifying boat or an aircraft from this state within 10 days
  132  after the date of purchase or, when the boat or aircraft is
  133  repaired or altered, within 20 days after completion of the
  134  repairs or alterations; or if the aircraft will be registered in
  135  a foreign jurisdiction and:
  136         (I) Application for the aircraft’s registration is properly
  137  filed with a civil airworthiness authority of a foreign
  138  jurisdiction within 10 days after the date of purchase;
  139         (II) The purchaser removes the aircraft from the state to a
  140  foreign jurisdiction within 10 days after the date the aircraft
  141  is registered by the applicable foreign airworthiness authority;
  142  and
  143         (III) The aircraft is operated in the state solely to
  144  remove it from the state to a foreign jurisdiction.
  146  For purposes of this sub-subparagraph, the term “foreign
  147  jurisdiction” means any jurisdiction outside of the United
  148  States or any of its territories;
  149         b. The purchaser, within 90 days from the date of
  150  departure, provides the department with written proof that the
  151  purchaser licensed, registered, titled, or documented the boat
  152  or aircraft outside the state. If such written proof is
  153  unavailable, within 90 days the purchaser shall provide proof
  154  that the purchaser applied for such license, title,
  155  registration, or documentation. The purchaser shall forward to
  156  the department proof of title, license, registration, or
  157  documentation upon receipt;
  158         c. The purchaser, within 30 days after removing the boat or
  159  aircraft from Florida, furnishes the department with proof of
  160  removal in the form of receipts for fuel, dockage, slippage,
  161  tie-down, or hangaring from outside of Florida. The information
  162  so provided must clearly and specifically identify the boat or
  163  aircraft;
  164         d. The selling dealer, within 30 days after the date of
  165  sale, provides to the department a copy of the sales invoice,
  166  closing statement, bills of sale, and the original affidavit
  167  signed by the purchaser attesting that he or she has read the
  168  provisions of this section;
  169         e. The seller makes a copy of the affidavit a part of his
  170  or her record for as long as required by s. 213.35; and
  171         f. Unless the nonresident purchaser of a boat of 5 net tons
  172  of admeasurement or larger intends to remove the boat from this
  173  state within 10 days after the date of purchase or when the boat
  174  is repaired or altered, within 20 days after completion of the
  175  repairs or alterations, the nonresident purchaser applies to the
  176  selling dealer for a decal which authorizes 90 days after the
  177  date of purchase for removal of the boat. The nonresident
  178  purchaser of a qualifying boat may apply to the selling dealer
  179  within 60 days after the date of purchase for an extension decal
  180  that authorizes the boat to remain in this state for an
  181  additional 90 days, but not more than a total of 180 days,
  182  before the nonresident purchaser is required to pay the tax
  183  imposed by this chapter. The department is authorized to issue
  184  decals in advance to dealers. The number of decals issued in
  185  advance to a dealer shall be consistent with the volume of the
  186  dealer’s past sales of boats which qualify under this sub
  187  subparagraph. The selling dealer or his or her agent shall mark
  188  and affix the decals to qualifying boats in the manner
  189  prescribed by the department, before delivery of the boat.
  190         (I) The department is hereby authorized to charge dealers a
  191  fee sufficient to recover the costs of decals issued, except the
  192  extension decal shall cost $425.
  193         (II) The proceeds from the sale of decals will be deposited
  194  into the administrative trust fund.
  195         (III) Decals shall display information to identify the boat
  196  as a qualifying boat under this sub-subparagraph, including, but
  197  not limited to, the decal’s date of expiration.
  198         (IV) The department is authorized to require dealers who
  199  purchase decals to file reports with the department and may
  200  prescribe all necessary records by rule. All such records are
  201  subject to inspection by the department.
  202         (V) Any dealer or his or her agent who issues a decal
  203  falsely, fails to affix a decal, mismarks the expiration date of
  204  a decal, or fails to properly account for decals will be
  205  considered prima facie to have committed a fraudulent act to
  206  evade the tax and will be liable for payment of the tax plus a
  207  mandatory penalty of 200 percent of the tax, and shall be liable
  208  for fine and punishment as provided by law for a conviction of a
  209  misdemeanor of the first degree, as provided in s. 775.082 or s.
  210  775.083.
  211         (VI) Any nonresident purchaser of a boat who removes a
  212  decal before permanently removing the boat from the state, or
  213  defaces, changes, modifies, or alters a decal in a manner
  214  affecting its expiration date before its expiration, or who
  215  causes or allows the same to be done by another, will be
  216  considered prima facie to have committed a fraudulent act to
  217  evade the tax and will be liable for payment of the tax plus a
  218  mandatory penalty of 200 percent of the tax, and shall be liable
  219  for fine and punishment as provided by law for a conviction of a
  220  misdemeanor of the first degree, as provided in s. 775.082 or s.
  221  775.083.
  222         (VII) The department is authorized to adopt rules necessary
  223  to administer and enforce this subparagraph and to publish the
  224  necessary forms and instructions.
  225         (VIII) The department is hereby authorized to adopt
  226  emergency rules pursuant to s. 120.54(4) to administer and
  227  enforce the provisions of this subparagraph.
  229  If the purchaser fails to remove the qualifying boat from this
  230  state within the maximum 180 days after purchase or a
  231  nonqualifying boat or an aircraft from this state within 10 days
  232  after purchase or, when the boat or aircraft is repaired or
  233  altered, within 20 days after completion of such repairs or
  234  alterations, or permits the boat or aircraft to return to this
  235  state within 6 months from the date of departure, except as
  236  provided in s. 212.08(7)(fff), or if the purchaser fails to
  237  furnish the department with any of the documentation required by
  238  this subparagraph within the prescribed time period, the
  239  purchaser shall be liable for use tax on the cost price of the
  240  boat or aircraft and, in addition thereto, payment of a penalty
  241  to the Department of Revenue equal to the tax payable. This
  242  penalty shall be in lieu of the penalty imposed by s. 212.12(2).
  243  The maximum 180-day period following the sale of a qualifying
  244  boat tax-exempt to a nonresident may not be tolled for any
  245  reason.
  246         (b) At the rate of 6 percent of the cost price of each item
  247  or article of tangible personal property when the same is not
  248  sold but is used, consumed, distributed, or stored for use or
  249  consumption in this state; however, for tangible property
  250  originally purchased exempt from tax for use exclusively for
  251  lease and which is converted to the owner’s own use, tax may be
  252  paid on the fair market value of the property at the time of
  253  conversion. If the fair market value of the property cannot be
  254  determined, use tax at the time of conversion shall be based on
  255  the owner’s acquisition cost. Under no circumstances may the
  256  aggregate amount of sales tax from leasing the property and use
  257  tax due at the time of conversion be less than the total sales
  258  tax that would have been due on the original acquisition cost
  259  paid by the owner.
  260         (c) At the rate of 6 percent of the gross proceeds derived
  261  from the lease or rental of tangible personal property, as
  262  defined herein; however, the following special provisions apply
  263  to the lease or rental of motor vehicles:
  264         1. When a motor vehicle is leased or rented for a period of
  265  less than 12 months:
  266         a. If the motor vehicle is rented in Florida, the entire
  267  amount of such rental is taxable, even if the vehicle is dropped
  268  off in another state.
  269         b. If the motor vehicle is rented in another state and
  270  dropped off in Florida, the rental is exempt from Florida tax.
  271         2. Except as provided in subparagraph 3., for the lease or
  272  rental of a motor vehicle for a period of not less than 12
  273  months, sales tax is due on the lease or rental payments if the
  274  vehicle is registered in this state; provided, however, that no
  275  tax shall be due if the taxpayer documents use of the motor
  276  vehicle outside this state and tax is being paid on the lease or
  277  rental payments in another state.
  278         3. The tax imposed by this chapter does not apply to the
  279  lease or rental of a commercial motor vehicle as defined in s.
  280  316.003(13)(a) to one lessee or rentee for a period of not less
  281  than 12 months when tax was paid on the purchase price of such
  282  vehicle by the lessor. To the extent tax was paid with respect
  283  to the purchase of such vehicle in another state, territory of
  284  the United States, or the District of Columbia, the Florida tax
  285  payable shall be reduced in accordance with the provisions of s.
  286  212.06(7). This subparagraph shall only be available when the
  287  lease or rental of such property is an established business or
  288  part of an established business or the same is incidental or
  289  germane to such business.
  290         (d) At the rate of 6 percent of the lease or rental price
  291  paid by a lessee or rentee, or contracted or agreed to be paid
  292  by a lessee or rentee, to the owner of the tangible personal
  293  property.
  294         (e)1. At the rate of 6 percent on charges for:
  295         a. Prepaid calling arrangements. The tax on charges for
  296  prepaid calling arrangements shall be collected at the time of
  297  sale and remitted by the selling dealer.
  298         (I) “Prepaid calling arrangement” has the same meaning as
  299  provided in s. 202.11.
  300         (II) If the sale or recharge of the prepaid calling
  301  arrangement does not take place at the dealer’s place of
  302  business, it shall be deemed to have taken place at the
  303  customer’s shipping address or, if no item is shipped, at the
  304  customer’s address or the location associated with the
  305  customer’s mobile telephone number.
  306         (III) The sale or recharge of a prepaid calling arrangement
  307  shall be treated as a sale of tangible personal property for
  308  purposes of this chapter, regardless of whether a tangible item
  309  evidencing such arrangement is furnished to the purchaser, and
  310  such sale within this state subjects the selling dealer to the
  311  jurisdiction of this state for purposes of this subsection.
  312         (IV) No additional tax under this chapter or chapter 202 is
  313  due or payable if a purchaser of a prepaid calling arrangement
  314  who has paid tax under this chapter on the sale or recharge of
  315  such arrangement applies one or more units of the prepaid
  316  calling arrangement to obtain communications services as
  317  described in s. 202.11(9)(b)3., other services that are not
  318  communications services, or products.
  319         b. The installation of telecommunication and telegraphic
  320  equipment.
  321         c. Electrical power or energy, except that the tax rate for
  322  charges for electrical power or energy is 4.35 percent. Charges
  323  for electrical power and energy do not include taxes imposed
  324  under ss. 166.231 and 203.01(1)(a)3.
  325         2. Section 212.17(3), regarding credit for tax paid on
  326  charges subsequently found to be worthless, is equally
  327  applicable to any tax paid under this section on charges for
  328  prepaid calling arrangements, telecommunication or telegraph
  329  services, or electric power subsequently found to be
  330  uncollectible. As used in this paragraph, the term “charges”
  331  does not include any excise or similar tax levied by the Federal
  332  Government, a political subdivision of this state, or a
  333  municipality upon the purchase, sale, or recharge of prepaid
  334  calling arrangements or upon the purchase or sale of
  335  telecommunication, television system program, or telegraph
  336  service or electric power, which tax is collected by the seller
  337  from the purchaser.
  338         (f) At the rate of 6 percent on the sale, rental, use,
  339  consumption, or storage for use in this state of machines and
  340  equipment, and parts and accessories therefor, used in
  341  manufacturing, processing, compounding, producing, mining, or
  342  quarrying personal property for sale or to be used in furnishing
  343  communications, transportation, or public utility services.
  344         (g)1. At the rate of 6 percent on the retail price of
  345  newspapers and magazines sold or used in Florida.
  346         2. Notwithstanding other provisions of this chapter,
  347  inserts of printed materials which are distributed with a
  348  newspaper or magazine are a component part of the newspaper or
  349  magazine, and neither the sale nor use of such inserts is
  350  subject to tax when:
  351         a. Printed by a newspaper or magazine publisher or
  352  commercial printer and distributed as a component part of a
  353  newspaper or magazine, which means that the items after being
  354  printed are delivered directly to a newspaper or magazine
  355  publisher by the printer for inclusion in editions of the
  356  distributed newspaper or magazine;
  357         b. Such publications are labeled as part of the designated
  358  newspaper or magazine publication into which they are to be
  359  inserted; and
  360         c. The purchaser of the insert presents a resale
  361  certificate to the vendor stating that the inserts are to be
  362  distributed as a component part of a newspaper or magazine.
  363         (h)1. A tax is imposed at the rate of 4 percent on the
  364  charges for the use of coin-operated amusement machines. The tax
  365  shall be calculated by dividing the gross receipts from such
  366  charges for the applicable reporting period by a divisor,
  367  determined as provided in this subparagraph, to compute gross
  368  taxable sales, and then subtracting gross taxable sales from
  369  gross receipts to arrive at the amount of tax due. For counties
  370  that do not impose a discretionary sales surtax, the divisor is
  371  equal to 1.04; for counties that impose a 0.5 percent
  372  discretionary sales surtax, the divisor is equal to 1.045; for
  373  counties that impose a 1 percent discretionary sales surtax, the
  374  divisor is equal to 1.050; and for counties that impose a 2
  375  percent sales surtax, the divisor is equal to 1.060. If a county
  376  imposes a discretionary sales surtax that is not listed in this
  377  subparagraph, the department shall make the applicable divisor
  378  available in an electronic format or otherwise. Additional
  379  divisors shall bear the same mathematical relationship to the
  380  next higher and next lower divisors as the new surtax rate bears
  381  to the next higher and next lower surtax rates for which
  382  divisors have been established. When a machine is activated by a
  383  slug, token, coupon, or any similar device which has been
  384  purchased, the tax is on the price paid by the user of the
  385  device for such device.
  386         2. As used in this paragraph, the term “operator” means any
  387  person who possesses a coin-operated amusement machine for the
  388  purpose of generating sales through that machine and who is
  389  responsible for removing the receipts from the machine.
  390         a. If the owner of the machine is also the operator of it,
  391  he or she shall be liable for payment of the tax without any
  392  deduction for rent or a license fee paid to a location owner for
  393  the use of any real property on which the machine is located.
  394         b. If the owner or lessee of the machine is also its
  395  operator, he or she shall be liable for payment of the tax on
  396  the purchase or lease of the machine, as well as the tax on
  397  sales generated through the machine.
  398         c. If the proprietor of the business where the machine is
  399  located does not own the machine, he or she shall be deemed to
  400  be the lessee and operator of the machine and is responsible for
  401  the payment of the tax on sales, unless such responsibility is
  402  otherwise provided for in a written agreement between him or her
  403  and the machine owner.
  404         3.a. An operator of a coin-operated amusement machine may
  405  not operate or cause to be operated in this state any such
  406  machine until the operator has registered with the department
  407  and has conspicuously displayed an identifying certificate
  408  issued by the department. The identifying certificate shall be
  409  issued by the department upon application from the operator. The
  410  identifying certificate shall include a unique number, and the
  411  certificate shall be permanently marked with the operator’s
  412  name, the operator’s sales tax number, and the maximum number of
  413  machines to be operated under the certificate. An identifying
  414  certificate shall not be transferred from one operator to
  415  another. The identifying certificate must be conspicuously
  416  displayed on the premises where the coin-operated amusement
  417  machines are being operated.
  418         b. The operator of the machine must obtain an identifying
  419  certificate before the machine is first operated in the state
  420  and by July 1 of each year thereafter. The annual fee for each
  421  certificate shall be based on the number of machines identified
  422  on the application times $30 and is due and payable upon
  423  application for the identifying device. The application shall
  424  contain the operator’s name, sales tax number, business address
  425  where the machines are being operated, and the number of
  426  machines in operation at that place of business by the operator.
  427  No operator may operate more machines than are listed on the
  428  certificate. A new certificate is required if more machines are
  429  being operated at that location than are listed on the
  430  certificate. The fee for the new certificate shall be based on
  431  the number of additional machines identified on the application
  432  form times $30.
  433         c. A penalty of $250 per machine is imposed on the operator
  434  for failing to properly obtain and display the required
  435  identifying certificate. A penalty of $250 is imposed on the
  436  lessee of any machine placed in a place of business without a
  437  proper current identifying certificate. Such penalties shall
  438  apply in addition to all other applicable taxes, interest, and
  439  penalties.
  440         d. Operators of coin-operated amusement machines must
  441  obtain a separate sales and use tax certificate of registration
  442  for each county in which such machines are located. One sales
  443  and use tax certificate of registration is sufficient for all of
  444  the operator’s machines within a single county.
  445         4. The provisions of this paragraph do not apply to coin
  446  operated amusement machines owned and operated by churches or
  447  synagogues.
  448         5. In addition to any other penalties imposed by this
  449  chapter, a person who knowingly and willfully violates any
  450  provision of this paragraph commits a misdemeanor of the second
  451  degree, punishable as provided in s. 775.082 or s. 775.083.
  452         6. The department may adopt rules necessary to administer
  453  the provisions of this paragraph.
  454         (i)1. At the rate of 6 percent on charges for all:
  455         a. Detective, burglar protection, and other protection
  456  services (NAICS National Numbers 561611, 561612, 561613, and
  457  561621). Fingerprint services required under s. 790.06 or s.
  458  790.062 are not subject to the tax. Any law enforcement officer,
  459  as defined in s. 943.10, who is performing approved duties as
  460  determined by his or her local law enforcement agency in his or
  461  her capacity as a law enforcement officer, and who is subject to
  462  the direct and immediate command of his or her law enforcement
  463  agency, and in the law enforcement officer’s uniform as
  464  authorized by his or her law enforcement agency, is performing
  465  law enforcement and public safety services and is not performing
  466  detective, burglar protection, or other protective services, if
  467  the law enforcement officer is performing his or her approved
  468  duties in a geographical area in which the law enforcement
  469  officer has arrest jurisdiction. Such law enforcement and public
  470  safety services are not subject to tax irrespective of whether
  471  the duty is characterized as “extra duty,” “off-duty,” or
  472  “secondary employment,” and irrespective of whether the officer
  473  is paid directly or through the officer’s agency by an outside
  474  source. The term “law enforcement officer” includes full-time or
  475  part-time law enforcement officers, and any auxiliary law
  476  enforcement officer, when such auxiliary law enforcement officer
  477  is working under the direct supervision of a full-time or part
  478  time law enforcement officer.
  479         b. Nonresidential cleaning, excluding cleaning of the
  480  interiors of transportation equipment, and nonresidential
  481  building pest control services (NAICS National Numbers 561710
  482  and 561720).
  483         2. As used in this paragraph, “NAICS” means those
  484  classifications contained in the North American Industry
  485  Classification System, as published in 2007 by the Office of
  486  Management and Budget, Executive Office of the President.
  487         3. Charges for detective, burglar protection, and other
  488  protection security services performed in this state but used
  489  outside this state are exempt from taxation. Charges for
  490  detective, burglar protection, and other protection security
  491  services performed outside this state and used in this state are
  492  subject to tax.
  493         4. If a transaction involves both the sale or use of a
  494  service taxable under this paragraph and the sale or use of a
  495  service or any other item not taxable under this chapter, the
  496  consideration paid must be separately identified and stated with
  497  respect to the taxable and exempt portions of the transaction or
  498  the entire transaction shall be presumed taxable. The burden
  499  shall be on the seller of the service or the purchaser of the
  500  service, whichever applicable, to overcome this presumption by
  501  providing documentary evidence as to which portion of the
  502  transaction is exempt from tax. The department is authorized to
  503  adjust the amount of consideration identified as the taxable and
  504  exempt portions of the transaction; however, a determination
  505  that the taxable and exempt portions are inaccurately stated and
  506  that the adjustment is applicable must be supported by
  507  substantial competent evidence.
  508         5. Each seller of services subject to sales tax pursuant to
  509  this paragraph shall maintain a monthly log showing each
  510  transaction for which sales tax was not collected because the
  511  services meet the requirements of subparagraph 3. for out-of
  512  state use. The log must identify the purchaser’s name, location
  513  and mailing address, and federal employer identification number,
  514  if a business, or the social security number, if an individual,
  515  the service sold, the price of the service, the date of sale,
  516  the reason for the exemption, and the sales invoice number. The
  517  monthly log shall be maintained pursuant to the same
  518  requirements and subject to the same penalties imposed for the
  519  keeping of similar records pursuant to this chapter.
  520         (j)1. Notwithstanding any other provision of this chapter,
  521  there is hereby levied a tax on the sale, use, consumption, or
  522  storage for use in this state of any coin or currency, whether
  523  in circulation or not, when such coin or currency:
  524         a. Is not legal tender;
  525         b. If legal tender, is sold, exchanged, or traded at a rate
  526  in excess of its face value; or
  527         c. Is sold, exchanged, or traded at a rate based on its
  528  precious metal content.
  529         2. Such tax shall be at a rate of 6 percent of the price at
  530  which the coin or currency is sold, exchanged, or traded, except
  531  that, with respect to a coin or currency which is legal tender
  532  of the United States and which is sold, exchanged, or traded,
  533  such tax shall not be levied.
  534         3. There are exempt from this tax exchanges of coins or
  535  currency which are in general circulation in, and legal tender
  536  of, one nation for coins or currency which are in general
  537  circulation in, and legal tender of, another nation when
  538  exchanged solely for use as legal tender and at an exchange rate
  539  based on the relative value of each as a medium of exchange.
  540         4. With respect to any transaction that involves the sale
  541  of coins or currency taxable under this paragraph in which the
  542  taxable amount represented by the sale of such coins or currency
  543  exceeds $500, the entire amount represented by the sale of such
  544  coins or currency is exempt from the tax imposed under this
  545  paragraph. The dealer must maintain proper documentation, as
  546  prescribed by rule of the department, to identify that portion
  547  of a transaction which involves the sale of coins or currency
  548  and is exempt under this subparagraph.
  549         (k) At the rate of 6 percent of the sales price of each
  550  gallon of diesel fuel not taxed under chapter 206 purchased for
  551  use in a vessel, except dyed diesel fuel that is exempt pursuant
  552  to s. 212.08(4)(a)4.
  553         (l) Florists located in this state are liable for sales tax
  554  on sales to retail customers regardless of where or by whom the
  555  items sold are to be delivered. Florists located in this state
  556  are not liable for sales tax on payments received from other
  557  florists for items delivered to customers in this state.
  558         (m) Operators of game concessions or other concessionaires
  559  who customarily award tangible personal property as prizes may,
  560  in lieu of paying tax on the cost price of such property, pay
  561  tax on 25 percent of the gross receipts from such concession
  562  activity.
  563         (2) The tax shall be collected by the dealer, as defined
  564  herein, and remitted by the dealer to the state at the time and
  565  in the manner as hereinafter provided.
  566         (3) The tax so levied is in addition to all other taxes,
  567  whether levied in the form of excise, license, or privilege
  568  taxes, and in addition to all other fees and taxes levied.
  569         (4) The tax imposed pursuant to this chapter shall be due
  570  and payable according to the brackets set forth in s. 212.12.
  571         (5) Notwithstanding any other provision of this chapter,
  572  the maximum amount of tax imposed under this chapter and
  573  collected on each sale or use of a boat in this state may not
  574  exceed $18,000 and on each repair of a boat in this state may
  575  not exceed $60,000.
  576         Section 3. Section 212.0596, Florida Statutes, is amended
  577  to read:
  578         (Substantial rewording of section. See
  579         s. 212.0596, F.S., for present text.)
  580         212.0596Taxation of remote sales.
  581         (1) As used in this chapter, the term:
  582         (a) “Remote sale” means a retail sale of tangible personal
  583  property ordered by mail, telephone, the Internet, or other
  584  means of communication from a person who receives the order
  585  outside of this state and transports the property or causes the
  586  property to be transported from any jurisdiction, including this
  587  state, to a location in this state. For purposes of this
  588  paragraph, tangible personal property delivered to a location
  589  within this state is presumed to be used, consumed, distributed,
  590  or stored to be used or consumed in this state.
  591         (b) “Substantial number of remote sales” means any number
  592  of taxable remote sales in the previous calendar year in which
  593  the sum of the sales prices, as defined in s. 212.02(16),
  594  exceeded $100,000.
  595         (2) Every person making a substantial number of remote
  596  sales is a dealer for purposes of this chapter.
  597         Section 4. Section 212.05965, Florida Statutes, is created
  598  to read:
  599         212.05965Taxation of marketplace sales.—
  600         (1) As used in this chapter, the term:
  601         (a)Marketplace” means any physical place or electronic
  602  medium through which tangible personal property is offered for
  603  sale.
  604         (b)Marketplace provider” means a person who facilitates a
  605  retail sale by a marketplace seller by listing or advertising
  606  for sale by the marketplace seller tangible personal property in
  607  a marketplace, and who directly, or indirectly through
  608  agreements or arrangements with third parties, collects payment
  609  from the customer and transmits the payment to the marketplace
  610  seller, regardless of whether the marketplace provider receives
  611  compensation or other consideration in exchange for its
  612  services.
  613         1.The term does not include a person who solely provides
  614  travel agency services. As used in this subparagraph, the term
  615  “travel agency services” means arranging, booking, or otherwise
  616  facilitating for a commission, fee, or other consideration
  617  vacation or travel packages, rental cars, or other travel
  618  reservations; tickets for domestic or foreign travel by air,
  619  rail, ship, bus, or other mode of transportation; or hotel or
  620  other lodging accommodations.
  621         2.The term does not include a person who is a delivery
  622  network company unless the delivery network company is a
  623  registered dealer for purposes of this chapter and the delivery
  624  network company notifies all local merchants that sell through
  625  the delivery network company’s website or mobile application
  626  that the delivery network company is subject to the requirements
  627  of a marketplace provider under this section. As used in this
  628  subparagraph, the term:
  629         a.“Delivery network company” means a person who maintains
  630  a website or mobile application used to facilitate delivery
  631  services, the sale of local products, or both.
  632         b.“Delivery network courier” means a person who provides
  633  delivery services through a delivery network company website or
  634  mobile application using a personal means of transportation,
  635  such as a motor vehicle as defined in s. 320.01(1), bicycle,
  636  scooter, or other similar means of transportation; using public
  637  transportation; or by walking.
  638         c.Delivery services” means the pickup and delivery by a
  639  delivery network courier of one or more local products from a
  640  local merchant to a customer, which may include the selection,
  641  collection, and purchase of the local product in connection with
  642  the delivery. The term does not include any delivery requiring
  643  more than 75 miles of travel from the local merchant to the
  644  customer.
  645         d.“Local merchant” means a kitchen, restaurant, or a
  646  third-party merchant, including a grocery store, retail store,
  647  convenience store, or business of another type, which is not
  648  under common ownership or control of the delivery network
  649  company.
  650         e.Local product” means any tangible personal property,
  651  including food, but excluding freight, mail, or a package to
  652  which postage has been affixed.
  653         3. The term does not include a payment processor business
  654  that is appointed to handle payment transactions from various
  655  channels, such as charge cards, credit cards, or debit cards,
  656  and whose sole activity with respect to marketplace sales is to
  657  handle payment transactions between two parties.
  658         (c) “Marketplace seller” means a person who has an
  659  agreement with a marketplace provider and who makes retail sales
  660  of tangible personal property through a marketplace owned,
  661  operated, or controlled by the marketplace provider.
  662         (2)A marketplace provider who has a physical presence in
  663  this state or who is making or facilitating through a
  664  marketplace a substantial number of remote sales as defined in
  665  s. 212.0596(1) is a dealer for purposes of this chapter.
  666         (3)A marketplace provider shall certify to its marketplace
  667  sellers that it will collect and remit the tax imposed under
  668  this chapter on taxable retail sales made through the
  669  marketplace. Such certification may be included in the agreement
  670  between the marketplace provider and marketplace seller.
  671         (4)(a)A marketplace seller may not collect and remit the
  672  tax under this chapter on a taxable retail sale when the sale is
  673  made through the marketplace and the marketplace provider
  674  certifies, as required under subsection (3), that it will
  675  collect and remit such tax. A marketplace seller shall exclude
  676  such sales made through the marketplace from the marketplace
  677  seller’s tax return under s. 212.11.
  678         (b)1.A marketplace seller who has a physical presence in
  679  this state shall register and shall collect and remit the tax
  680  imposed under this chapter on all taxable retail sales made
  681  outside of the marketplace.
  682         2. A marketplace seller making a substantial number of
  683  remote sales as defined in s. 212.0596(1) shall register and
  684  shall collect and remit the tax imposed under this chapter on
  685  all taxable retail sales made outside of the marketplace. For
  686  the purposes of determining whether a marketplace seller made a
  687  substantial number of remote sales, the marketplace seller shall
  688  consider only those sales made outside of the marketplace.
  689         (5)(a)A marketplace provider shall allow the department to
  690  examine and audit its books and records pursuant to s. 212.13.
  691  For retail sales facilitated through a marketplace, the
  692  department may not examine or audit the books and records of
  693  marketplace sellers, nor may the department assess marketplace
  694  sellers except to the extent that the marketplace provider seeks
  695  relief under paragraph (b). The department may examine, audit,
  696  and assess a marketplace seller for retail sales made outside of
  697  the marketplace under paragraph (4)(b).
  698         (b)The marketplace provider is relieved of liability for
  699  the tax on the retail sale and the marketplace seller or
  700  customer is liable for the tax imposed under this chapter if the
  701  marketplace provider demonstrates to the department’s
  702  satisfaction that the marketplace provider made a reasonable
  703  effort to obtain accurate information related to the retail
  704  sales facilitated through the marketplace from the marketplace
  705  seller, but that the failure to collect and pay the correct
  706  amount of tax imposed under this chapter was due to the
  707  provision of incorrect or incomplete information to the
  708  marketplace provider by the marketplace seller. This paragraph
  709  does not apply to a retail sale for which the marketplace
  710  provider is the seller if the marketplace provider and
  711  marketplace seller are related parties or if transactions
  712  between a marketplace seller and marketplace buyer are not
  713  conducted at arm’s length.
  714         (6)For purposes of registration pursuant to s. 212.18, a
  715  marketplace is deemed a separate place of business.
  716         (7)A marketplace provider and marketplace seller may agree
  717  by contract or otherwise that if a marketplace provider pays the
  718  tax imposed under this chapter on a retail sale facilitated
  719  through a marketplace for a marketplace seller as a result of an
  720  audit or otherwise, the marketplace provider has the right to
  721  recover such tax and any associated interest and penalties from
  722  the marketplace seller.
  723         (8)This section may not be construed to authorize the
  724  state to collect sales tax from both the marketplace provider
  725  and the marketplace seller on the same retail sale.
  726         (9)Chapter 213 applies to the administration of this
  727  section to the extent that chapter does not conflict with this
  728  section.
  729         Section 5. Paragraph (c) of subsection (2) and paragraph
  730  (a) of subsection (5) of section 212.06, Florida Statutes, are
  731  amended to read:
  732         212.06 Sales, storage, use tax; collectible from dealers;
  733  “dealer” defined; dealers to collect from purchasers;
  734  legislative intent as to scope of tax.—
  735         (2)
  736         (c) The term “dealer” is further defined to mean every
  737  person, as used in this chapter, who sells at retail or who
  738  offers for sale at retail, or who has in his or her possession
  739  for sale at retail; or for use, consumption, or distribution; or
  740  for storage to be used or consumed in this state, tangible
  741  personal property as defined herein, including a retailer who
  742  transacts a remote mail order sale or a person who is a
  743  marketplace provider as defined in s. 212.05965.
  744         (5)(a)1. Except as provided in subparagraph 2., it is not
  745  the intention of this chapter to levy a tax upon tangible
  746  personal property imported, produced, or manufactured in this
  747  state for export, provided that tangible personal property may
  748  not be considered as being imported, produced, or manufactured
  749  for export unless the importer, producer, or manufacturer
  750  delivers the same to a licensed exporter for exporting or to a
  751  common carrier for shipment outside the state or mails the same
  752  by United States mail to a destination outside the state; or, in
  753  the case of aircraft being exported under their own power to a
  754  destination outside the continental limits of the United States,
  755  by submission to the department of a duly signed and validated
  756  United States customs declaration, showing the departure of the
  757  aircraft from the continental United States; and further with
  758  respect to aircraft, the canceled United States registry of said
  759  aircraft; or in the case of parts and equipment installed on
  760  aircraft of foreign registry, by submission to the department of
  761  documentation, the extent of which shall be provided by rule,
  762  showing the departure of the aircraft from the continental
  763  United States; nor is it the intention of this chapter to levy a
  764  tax on any sale which the state is prohibited from taxing under
  765  the Constitution or laws of the United States. Every retail sale
  766  made to a person physically present at the time of sale shall be
  767  presumed to have been delivered in this state.
  768         2.a. Notwithstanding subparagraph 1., a tax is levied on
  769  each sale of tangible personal property to be transported to a
  770  cooperating state as defined in sub-subparagraph c., at the rate
  771  specified in sub-subparagraph d. However, a Florida dealer will
  772  be relieved from the requirements of collecting taxes pursuant
  773  to this subparagraph if the Florida dealer obtains from the
  774  purchaser an affidavit setting forth the purchaser’s name,
  775  address, state taxpayer identification number, and a statement
  776  that the purchaser is aware of his or her state’s use tax laws,
  777  is a registered dealer in Florida or another state, or is
  778  purchasing the tangible personal property for resale or is
  779  otherwise not required to pay the tax on the transaction. The
  780  department may, by rule, provide a form to be used for the
  781  purposes set forth herein.
  782         b. For purposes of this subparagraph, “a cooperating state”
  783  is one determined by the executive director of the department to
  784  cooperate satisfactorily with this state in collecting taxes on
  785  remote mail order sales. No state shall be so determined unless
  786  it meets all the following minimum requirements:
  787         (I) It levies and collects taxes on remote mail order sales
  788  of property transported from that state to persons in this
  789  state, as described in s. 212.0596, upon request of the
  790  department.
  791         (II) The tax so collected shall be at the rate specified in
  792  s. 212.05, not including any local option or tourist or
  793  convention development taxes collected pursuant to s. 125.0104
  794  or this chapter.
  795         (III) Such state agrees to remit to the department all
  796  taxes so collected no later than 30 days from the last day of
  797  the calendar quarter following their collection.
  798         (IV) Such state authorizes the department to audit dealers
  799  within its jurisdiction who make remote mail order sales that
  800  are the subject of s. 212.0596, or makes arrangements deemed
  801  adequate by the department for auditing them with its own
  802  personnel.
  803         (V) Such state agrees to provide to the department records
  804  obtained by it from retailers or dealers in such state showing
  805  delivery of tangible personal property into this state upon
  806  which no sales or use tax has been paid in a manner similar to
  807  that provided in sub-subparagraph g.
  808         c. For purposes of this subparagraph, “sales of tangible
  809  personal property to be transported to a cooperating state”
  810  means remote mail order sales to a person who is in the
  811  cooperating state at the time the order is executed, from a
  812  dealer who receives that order in this state.
  813         d. The tax levied by sub-subparagraph a. shall be at the
  814  rate at which such a sale would have been taxed pursuant to the
  815  cooperating state’s tax laws if consummated in the cooperating
  816  state by a dealer and a purchaser, both of whom were physically
  817  present in that state at the time of the sale.
  818         e. The tax levied by sub-subparagraph a., when collected,
  819  shall be held in the State Treasury in trust for the benefit of
  820  the cooperating state and shall be paid to it at a time agreed
  821  upon between the department, acting for this state, and the
  822  cooperating state or the department or agency designated by it
  823  to act for it; however, such payment shall in no event be made
  824  later than 30 days from the last day of the calendar quarter
  825  after the tax was collected. Funds held in trust for the benefit
  826  of a cooperating state shall not be subject to the service
  827  charges imposed by s. 215.20.
  828         f. The department is authorized to perform such acts and to
  829  provide such cooperation to a cooperating state with reference
  830  to the tax levied by sub-subparagraph a. as is required of the
  831  cooperating state by sub-subparagraph b.
  832         g. In furtherance of this act, dealers selling tangible
  833  personal property for delivery in another state shall make
  834  available to the department, upon request of the department,
  835  records of all tangible personal property so sold. Such records
  836  shall include a description of the property, the name and
  837  address of the purchaser, the name and address of the person to
  838  whom the property was sent, the purchase price of the property,
  839  information regarding whether sales tax was paid in this state
  840  on the purchase price, and such other information as the
  841  department may by rule prescribe.
  842         Section 6. Paragraph (a) of subsection (1) and paragraph
  843  (a) of subsection (5) of section 212.12, Florida Statutes, are
  844  amended to read:
  845         212.12 Dealer’s credit for collecting tax; penalties for
  846  noncompliance; powers of Department of Revenue in dealing with
  847  delinquents; brackets applicable to taxable transactions;
  848  records required.—
  849         (1)(a)1. Notwithstanding any other law and for the purpose
  850  of compensating persons granting licenses for and the lessors of
  851  real and personal property taxed hereunder, for the purpose of
  852  compensating dealers in tangible personal property, for the
  853  purpose of compensating dealers providing communication services
  854  and taxable services, for the purpose of compensating owners of
  855  places where admissions are collected, and for the purpose of
  856  compensating remitters of any taxes or fees reported on the same
  857  documents utilized for the sales and use tax, as compensation
  858  for the keeping of prescribed records, filing timely tax
  859  returns, and the proper accounting and remitting of taxes by
  860  them, such seller, person, lessor, dealer, owner, and remitter
  861  (except dealers who make mail order sales) who files the return
  862  required pursuant to s. 212.11 only by electronic means and who
  863  pays the amount due on such return only by electronic means
  864  shall be allowed 2.5 percent of the amount of the tax due,
  865  accounted for, and remitted to the department in the form of a
  866  deduction. However, if the amount of the tax due and remitted to
  867  the department by electronic means for the reporting period
  868  exceeds $1,200, an allowance is not allowed for all amounts in
  869  excess of $1,200. For purposes of this paragraph subparagraph,
  870  the term “electronic means” has the same meaning as provided in
  871  s. 213.755(2)(c).
  872         2. The executive director of the department is authorized
  873  to negotiate a collection allowance, pursuant to rules
  874  promulgated by the department, with a dealer who makes mail
  875  order sales. The rules of the department shall provide
  876  guidelines for establishing the collection allowance based upon
  877  the dealer’s estimated costs of collecting the tax, the volume
  878  and value of the dealer’s mail order sales to purchasers in this
  879  state, and the administrative and legal costs and likelihood of
  880  achieving collection of the tax absent the cooperation of the
  881  dealer. However, in no event shall the collection allowance
  882  negotiated by the executive director exceed 10 percent of the
  883  tax remitted for a reporting period.
  884         (5)(a) The department is authorized to audit or inspect the
  885  records and accounts of dealers defined herein, including audits
  886  or inspections of dealers who make remote mail order sales to
  887  the extent permitted by another state, and to correct by credit
  888  any overpayment of tax, and, in the event of a deficiency, an
  889  assessment shall be made and collected. No administrative
  890  finding of fact is necessary prior to the assessment of any tax
  891  deficiency.
  892         Section 7. Paragraph (f) of subsection (3) of section
  893  212.18, Florida Statutes, is amended to read:
  894         212.18 Administration of law; registration of dealers;
  895  rules.—
  896         (3)
  897         (f) As used in this paragraph, the term “exhibitor” means a
  898  person who enters into an agreement authorizing the display of
  899  tangible personal property or services at a convention or a
  900  trade show. The following provisions apply to the registration
  901  of exhibitors as dealers under this chapter:
  902         1. An exhibitor whose agreement prohibits the sale of
  903  tangible personal property or services subject to the tax
  904  imposed in this chapter is not required to register as a dealer.
  905         2. An exhibitor whose agreement provides for the sale at
  906  wholesale only of tangible personal property or services subject
  907  to the tax imposed by this chapter must obtain a resale
  908  certificate from the purchasing dealer but is not required to
  909  register as a dealer.
  910         3. An exhibitor whose agreement authorizes the retail sale
  911  of tangible personal property or services subject to the tax
  912  imposed by this chapter must register as a dealer and collect
  913  the tax on such sales.
  914         4. An exhibitor who makes a remote mail order sale pursuant
  915  to s. 212.0596 must register as a dealer.
  917  A person who conducts a convention or a trade show must make his
  918  or her exhibitor’s agreements available to the department for
  919  inspection and copying.
  920         Section 8. Subsection (4) of section 212.20, Florida
  921  Statutes, is amended to read:
  922         212.20 Funds collected, disposition; additional powers of
  923  department; operational expense; refund of taxes adjudicated
  924  unconstitutionally collected.—
  925         (4) When there has been a final adjudication that any tax
  926  pursuant to s. 212.0596 or s. 212.05965 was levied, collected,
  927  or both, contrary to the Constitution of the United States or
  928  the State Constitution, the department shall, in accordance with
  929  rules, determine, based upon claims for refund and other
  930  evidence and information, who paid such tax or taxes, and refund
  931  to each such person the amount of tax paid. For purposes of this
  932  subsection, a “final adjudication” is a decision of a court of
  933  competent jurisdiction from which no appeal can be taken or from
  934  which the official or officials of this state with authority to
  935  make such decisions has or have decided not to appeal.
  936         Section 9. Subsection (5) of section 213.27, Florida
  937  Statutes, is amended to read:
  938         213.27 Contracts with debt collection agencies and certain
  939  vendors.—
  940         (5) The department may, for the purpose of ascertaining the
  941  amount of or collecting any taxes due from a person making or
  942  facilitating remote sales under s. 212.0596 or s. 212.05965
  943  doing mail order business in this state, contract with any
  944  auditing agency doing business within or without this state for
  945  the purpose of conducting an audit of such person mail order
  946  business; however, such audit agency may not conduct an audit on
  947  behalf of the department of any person domiciled in this state,
  948  person registered for sales and use tax purposes in this state,
  949  or corporation filing a Florida corporate tax return, if any
  950  such person or corporation objects to such audit in writing to
  951  the department and the auditing agency. The department shall
  952  notify the taxpayer by mail at least 30 days before the
  953  department assigns the collection of such taxes.
  954         Section 10. This act first applies to remote sales made or
  955  facilitated on or after July 1, 2021, by a person who made or
  956  facilitated a substantial number of remote sales in calendar
  957  year 2020.
  958         Section 11. (1) The Department of Revenue is authorized,
  959  and all conditions are deemed met, to adopt emergency rules
  960  pursuant to s. 120.54(4), Florida Statutes, for the purpose of
  961  administering this act.
  962         (2) Notwithstanding any other law, emergency rules adopted
  963  pursuant to subsection (1) are effective for 6 months after
  964  adoption and may be renewed during the pendency of procedures to
  965  adopt permanent rules addressing the subject of the emergency
  966  rules.
  967         (3) This section shall take effect upon this act becoming a
  968  law and expires July 1, 2022.
  969         Section 12. If any provision of this act or its application
  970  to any person or circumstance is held invalid, the invalidity
  971  does not affect other provisions or applications of the act
  972  which can be given effect without the invalid provision or
  973  application, and to this end the provisions of this act are
  974  severable.
  975         Section 13. Except as otherwise expressly provided in this
  976  act and except for this section, which shall take effect upon
  977  this act becoming a law, this act shall take effect July 1,
  978  2021.