Florida Senate - 2021                                     SB 652
       By Senator Taddeo
       40-00171-21                                            2021652__
    1                        A bill to be entitled                      
    2         An act relating to a bottled water excise tax;
    3         revising the title of ch. 211, F.S.; creating part III
    4         of ch. 211, F.S., entitled “Tax on Extraction of Water
    5         for Bottling”; creating s. 211.40, F.S.; defining
    6         terms; creating s. 211.41, F.S.; imposing an excise
    7         tax upon bottled water operators; specifying the rate
    8         of the tax and the trust fund where tax proceeds are
    9         to be deposited; requiring that tax proceeds be
   10         separately accounted for and be used for certain
   11         purposes; creating s. 211.42, F.S.; specifying
   12         requirements for bottled water operators in filing
   13         monthly returns with the Department of Revenue;
   14         authorizing the department to grant extensions for
   15         filing and payment under certain circumstances;
   16         specifying the department’s rulemaking authority;
   17         creating s. 211.43, F.S.; specifying interest payable
   18         on unpaid taxes; specifying the delinquency penalty
   19         for failure to timely file a return; specifying the
   20         penalty for the substantial underpayment of taxes;
   21         providing construction; authorizing the department to
   22         settle or compromise taxes in accordance with certain
   23         provisions; creating s. 211.44, F.S.; authorizing the
   24         department to adopt rules; requiring local governments
   25         to cooperate with the department and furnish
   26         information without cost to the department for certain
   27         purposes; specifying recordkeeping requirements for
   28         bottled water operators; specifying the department’s
   29         authority to inspect, examine, and audit bottled water
   30         operator books and records, issue subpoenas, require
   31         testimony under oath or affirmation of certain
   32         persons, and apply for certain judicial orders;
   33         specifying requirements and procedures for the
   34         department in conducting audits, assessing
   35         deficiencies, and crediting or refunding overpayments;
   36         specifying procedures and requirements for claiming
   37         refunds; providing that amounts due remain a lien on
   38         certain property; specifying requirements and
   39         procedures for warrants and alias tax executions
   40         issued by the department; requiring that suits brought
   41         by the department for violations be brought in circuit
   42         court; creating s. 211.45, F.S.; providing criminal
   43         penalties for certain violations; providing an
   44         effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. Chapter 211, Florida Statutes, entitled “Tax on
   49  Production of Oil and Gas and Severance of Solid Minerals,” is
   50  retitled “Tax on Production of Oil and Gas, Severance of Solid
   51  Minerals, and Extraction of Water for Bottling.”
   52         Section 2. The Division of Law Revision is directed to
   53  create part III of chapter 211, Florida Statutes, consisting of
   54  ss. 211.40-211.45, Florida Statutes, to be entitled “Tax on
   55  Extraction of Water for Bottling.”
   56         Section 3. Section 211.40, Florida Statutes, is created to
   57  read:
   58         211.40 Definitions.—As used in this part, the term:
   59         (1)“Bottled water operator” means a person engaged in the
   60  business of extracting water from waters of the state and
   61  bottling or packaging the water for sale. The term does not
   62  include a person who extracts and bottles or packages water from
   63  a public water system as defined in s. 403.852(2).
   64         (2)“Department” means the Department of Revenue.
   65         (3)“Waters of the state” has the same meaning as the term
   66  “waters” as defined in s. 403.031(13).
   67         Section 4. Section 211.41, Florida Statutes, is created to
   68  read:
   69         211.41 Bottled water excise tax; distribution and use of
   70  tax proceeds.—
   71         (1)An excise tax is levied upon every person who acts as a
   72  bottled water operator at a rate of 12.5 cents per gallon of
   73  water extracted from waters of the state.
   74         (2)The proceeds of the tax imposed by this section must be
   75  deposited in the Wastewater Treatment and Stormwater Management
   76  Revolving Loan Trust Fund and must be accounted for separately
   77  within the fund. The tax proceeds must be used to provide grants
   78  and loans to local governmental agencies pursuant to s.
   79  403.1835, with priority given to projects that connect existing
   80  onsite sewage treatment and disposal systems to central sewerage
   81  systems.
   82         Section 5. Section 211.42, Florida Statutes, is created to
   83  read:
   84         211.42 Returns; filing requirements.—
   85         (1)Each bottled water operator shall remit tax due and
   86  submit to the department a return on or before the 25th day of
   87  each month showing the total amount of water extracted from
   88  waters of the state during the previous month, the source and
   89  county of extraction, the location of all facilities from which
   90  taxable water was extracted, and other information required by
   91  department rule. The department shall prescribe by rule the form
   92  of the return. The return must be filed on or before the last
   93  day prescribed for payment of the tax and must be signed and
   94  verified under oath by the bottled water operator or the bottled
   95  water operator’s authorized representative.
   96         (a) The return must include a statement of the tax due
   97  under this part and such other information as the department may
   98  reasonably require.
   99         (b) A return must be filed even though no tax is due. Any
  100  tax, penalty, or interest due must be remitted with the return.
  101         (2) If any due date prescribed by this section falls on a
  102  Saturday, Sunday, or state or federal holiday, the last date
  103  prescribed for filing or payment is the next day that is not a
  104  Saturday, Sunday, or holiday. The date of receipt by the
  105  department, or the postmark date if mailed, determines the
  106  timeliness of payment or filing.
  107         (3) The department may grant an extension of time for
  108  payment or filing of a return upon written request submitted on
  109  or before the due date.
  110         Section 6. Section 211.43, Florida Statutes, is created to
  111  read:
  112         211.43 Interest and penalties; failure to pay tax or file
  113  return.—
  114         (1) If any part of the tax imposed by this part is not paid
  115  on or before the due date, interest must be added to the amount
  116  due at the rate of 12 percent per year from the due date until
  117  the date of payment.
  118         (2) A bottled water operator who fails to file the return
  119  required under s. 211.42 by the due date shall pay a delinquency
  120  penalty. If tax is due with the return, the delinquency penalty
  121  is 10 percent for each month, or portion thereof, of the amount
  122  of tax due with the return, not to exceed 50 percent. If no tax
  123  is due with the return, the delinquency penalty is $50 for each
  124  month, or portion thereof, during which the return was not
  125  filed, not to exceed $300 in aggregate. The amount of tax due
  126  with a return must be reduced by amounts properly creditable
  127  against the tax liability shown on the return on the date the
  128  return was due.
  129         (3) A bottled water operator who makes a substantial
  130  underpayment of the tax due under this part shall pay a penalty
  131  of 30 percent of the underpayment in addition to the delinquency
  132  penalty imposed under subsection (2). For purposes of this
  133  subsection, a substantial underpayment of tax is a deficiency of
  134  tax in an amount exceeding 35 percent of the total tax due for a
  135  month.
  136         (4) Any penalty or interest imposed under this section is
  137  deemed assessed upon the assessment of the tax and must be
  138  collected and paid in the same manner as the tax.
  139         (5) Any penalty imposed by this section may be settled or
  140  compromised by the department for reasonable cause in accordance
  141  with s. 213.21. Interest imposed by this section may be settled
  142  or compromised only as authorized by s. 213.21.
  143         Section 7. Section 211.44, Florida Statutes, is created to
  144  read:
  145         211.44 Administration and enforcement; books and records;
  146  refunds.—
  147         (1) The department may adopt rules to administer this part,
  148  including prescribing the form and content of returns and
  149  reports.
  150         (2) All state, county, or municipal agencies, boards,
  151  bureaus, departments, or districts shall cooperate with the
  152  department and furnish any information the department deems
  153  necessary, without cost to the department, for the purposes of
  154  administering, collecting, or enforcing the tax imposed under
  155  this part.
  156         (3)(a) Each bottled water operator shall keep suitable
  157  books and records relating to the extraction of taxable waters
  158  of the state to enable the department to determine the amount of
  159  tax due under this part. Such books and records must be
  160  preserved until the time within which the department may make an
  161  assessment with respect thereto has expired in accordance with
  162  s. 213.35.
  163         (b) The department may inspect or examine the books,
  164  records, or papers of any bottled water operator which are
  165  reasonably required for the purposes of this part and may
  166  require such person to testify under oath or affirmation or to
  167  answer competent questions regarding such person’s business or
  168  extraction of taxable waters of the state.
  169         1. The department may issue subpoenas to compel third
  170  parties to testify or to produce records or other evidence in
  171  their possession.
  172         2. Any duly authorized representative of the department may
  173  administer an oath or affirmation.
  174         3. If any person fails to comply with a request of the
  175  department for the inspection of records, fails to give
  176  testimony or respond to competent questions, or fails to comply
  177  with a subpoena, a circuit court having jurisdiction over such
  178  person may, upon application by the department, issue orders
  179  necessary to secure compliance.
  180         (c) All books and records required to be kept under this
  181  subsection must be available for inspection by the department
  182  upon written request during normal business hours.
  183         (4) The department may audit or examine the books and
  184  records of a bottled water operator to determine whether returns
  185  have been properly filed and tax has been properly paid. An
  186  audit may be commenced for any month for which the power of the
  187  department to make an assessment of amounts due under this part
  188  is available. An audit must be commenced by service of a written
  189  notice of intent to audit upon the bottled water operator,
  190  either in person or by certified mail. The date of personal
  191  contact or the date of the notice governs the period subject to
  192  audit. If there is jeopardy to the revenue and jeopardy is
  193  asserted in or with an assessment, the department must proceed
  194  in the manner specified for jeopardy assessment in s. 213.732.
  195         (5)(a) The department may assess, with or without an audit,
  196  any deficiency resulting from nonpayment or underpayment of the
  197  tax, interest, or penalties imposed by this part. The department
  198  shall inform the bottled water operator by written notice of the
  199  amount of any deficiency or overpayment revealed by an audit,
  200  including the tax, interest, or penalties due, and shall explain
  201  the basis for the determination.
  202         (b) The department may make an assessment under this part
  203  based upon the best information available to it. The department
  204  may make an assessment based upon an estimate of amounts due
  205  under this part if a bottled water operator fails to file a
  206  return, files a grossly incorrect or fraudulent return, or
  207  refuses to permit inspection of records. An assessment of the
  208  amounts due under this part is deemed prima facie correct and
  209  the bottled water operator has the burden of showing any error
  210  in it.
  211         (c) In the event of a deficiency, the department shall
  212  issue its written notice to a bottled water operator for the
  213  tax, penalties, or interest due. Full payment of the total
  214  amount assessed must be made in the manner prescribed by the
  215  department in its notice.
  216         (6)(a) The department may credit or refund any overpayments
  217  of amounts due under this part which are revealed by an audit or
  218  for which a timely claim for refund has been properly filed.
  219         (b) A claim for refund may be filed within the period
  220  specified in s. 215.26(2).
  221         (c) A claim for refund must be signed by the bottled water
  222  operator or the bottled water operator’s duly authorized
  223  representative, successor, or assignee and must include
  224  information the department requires to determine the correctness
  225  of the claim.
  226         (7)(a) Amounts due under this part remain a lien upon the
  227  property, assets, and effects of a bottled water operator until
  228  paid or until collection thereof is barred under s. 95.091.
  229  Amounts due may be recovered by the department, on behalf of the
  230  state, by an action in any county where the property, assets, or
  231  effects of the bottled water operator are located.
  232         (b) When any tax imposed by this part becomes delinquent or
  233  is otherwise in jeopardy, the department may issue a warrant for
  234  the full amount due or estimated to be due, including the tax,
  235  penalties, interest, and costs of collection. The warrant must
  236  be directed to each sheriff and may be recorded with the clerk
  237  of the circuit court in any county where the bottled water
  238  operator’s property is located. Upon recording, the clerk of the
  239  circuit court shall execute the warrant in the same manner
  240  prescribed by law for executions upon judgments and is entitled
  241  to the same fees for this service. Upon payment of the warrant,
  242  the department shall satisfy the lien of record within 30 days.
  243  Thereafter, any interested person may compel the department to
  244  satisfy the lien of record.
  245         (c) An alias tax execution may be issued whenever the
  246  department deems it necessary. Each alias tax execution must be
  247  so designated on its face and has the same force and effect as
  248  the original.
  249         (d) Tax executions may be levied upon any third party who
  250  is in possession or control of any assets of a delinquent
  251  bottled water operator or who is indebted to a delinquent
  252  bottled water operator. Such tax executions have the force and
  253  effect of a writ of garnishment. The third party shall pay the
  254  debt or deliver the assets of the delinquent bottled water
  255  operator to the department, and receipt by the department
  256  discharges the third party completely to the extent of the debt
  257  paid or assets surrendered to the department.
  258         (e) When any tax execution becomes void, the department may
  259  cancel it of record and shall do so upon the request of any
  260  interested person.
  261         (8) Any employee of the department may be designated by the
  262  executive director to make and sign assessments, tax warrants,
  263  and satisfactions of tax warrants.
  264         (9) Any suit brought by the department against any person
  265  for violating this part must be brought in circuit court.
  266         Section 8. Section 211.45, Florida Statutes, is created to
  267  read:
  268         211.45 Criminal penalties.—
  269         (1) A person who willfully fails to file a return or keep
  270  books or records on the extraction of waters of the state which
  271  is taxable under this part, who files a fraudulent return, who
  272  willfully fails or refuses to produce books or records, or who
  273  willfully violates any provision of this part or any rule
  274  adopted by the department under this part commits a misdemeanor
  275  of the first degree, punishable as provided in s. 775.082 or s.
  276  775.083.
  277         (2) A person who withholds tax due under this part and
  278  willfully fails to make remittance as required by this part or
  279  who purports to make payments due under this part but willfully
  280  fails to do so because the remittance fails to clear the bank or
  281  depository institution against which it is drawn commits a
  282  felony of the third degree, punishable as provided in s.
  283  775.082, s. 775.083, or s. 775.084.
  284         Section 9. This act shall take effect July 1, 2021.