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. 45 46 Be It Enacted by the Legislature of the State of Florida: 47 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.