CS for CS for SB 1382 First Engrossed (ntc)
20221382e1
1 A bill to be entitled
2 An act relating to tax administration; amending s.
3 72.011, F.S.; prohibiting taxpayers from submitting
4 certain records in tax proceedings under certain
5 circumstances; providing construction; amending s.
6 120.80, F.S.; prohibiting taxpayers from submitting
7 certain records in tax proceedings under certain
8 circumstances; providing construction; amending s.
9 202.34, F.S.; authorizing the Department of Revenue to
10 respond to contact initiated by taxpayers to discuss
11 audits; authorizing taxpayers to provide records and
12 other information to the department; authorizing the
13 department to examine documentation and other
14 information; providing construction; requiring
15 taxpayers to object to premature audits within a
16 certain timeframe; providing that a tolling period is
17 considered lifted under certain circumstances;
18 authorizing the department to adopt rules; amending
19 ss. 202.36, 206.14, 211.125, 212.14, and 220.735,
20 F.S.; creating rebuttable presumptions regarding
21 proposed final agency action by the department;
22 authorizing the department to make assessments and
23 determine taxes using specified methods under certain
24 circumstances; requiring the department to inform the
25 taxpayer of certain information; providing
26 construction; amending s. 206.9931, F.S.; deleting
27 obsolete language; amending s. 212.05, F.S.;
28 clarifying conditions for application of an exemption
29 for sales taxes for certain nonresident purchasers of
30 boats or aircraft; revising requirements for an
31 affidavit; amending s. 212.13, F.S.; defining the
32 terms “dealer,” “division,” and “transferor”;
33 requiring dealers to maintain specified records;
34 authorizing the department to issue written requests
35 for such records under certain circumstances;
36 authorizing the department to suspend resale
37 certificates issued to dealers under certain
38 circumstances; specifying procedures for suspension of
39 resale certificates; providing construction;
40 specifying procedures for suspension and revocation of
41 licenses of certain dealers under certain
42 circumstances; requiring the department to publish
43 certain information regarding dealers with suspended
44 resale certificates; prohibiting transferors from
45 accepting orders from or delivering alcoholic
46 beverages to dealers with suspended resale
47 certificates within a specified timeframe; authorizing
48 the department to adopt rules; authorizing the
49 department to respond to contact initiated by
50 taxpayers to discuss audits; authorizing taxpayers to
51 provide records and other information; authorizing the
52 department to examine documentation and other
53 information; providing construction; requiring
54 taxpayers to object in writing to premature audits
55 within a certain timeframe; providing that a tolling
56 period is considered lifted under certain
57 circumstances; authorizing the department to adopt
58 rules; amending s. 213.051, F.S.; authorizing the
59 department to serve subpoenas on businesses registered
60 with the department; providing construction; amending
61 s. 215.053, F.S.; requiring the department to publish
62 certain information regarding dealers with suspended
63 resale certificates; requiring the department to
64 update such information; authorizing the department to
65 adopt rules; amending s. 213.06, F.S.; revising the
66 period in which, and conditions under which, the
67 executive director of the department may adopt
68 emergency rules; providing for an exemption from the
69 Administrative Procedure Act for any such emergency
70 rules; specifying conditions regarding the
71 effectiveness and the renewal of emergency rules;
72 providing construction; amending s. 213.21, F.S.;
73 providing for tolling of the statute of limitations
74 upon the issuance of assessments, rather than final
75 assessments; authorizing a taxpayer’s liability to be
76 settled or compromised under certain circumstances;
77 creating a rebuttable presumption; conforming a
78 provision to changes made by the act; specifying the
79 conditions for the department to consider requests to
80 settle or compromise any tax, interest, penalty, or
81 other liability; providing construction; amending s.
82 213.34, F.S.; revising audit procedures of the
83 department; authorizing the department to adopt rules;
84 requiring the department to refund any overpayments;
85 providing construction; amending s. 213.345, F.S.;
86 specifying conditions under which a period is tolled
87 during an audit; providing construction; amending s.
88 213.67, F.S.; authorizing the executive director of
89 the department or his or her designee to include
90 additional daily accrued interest, costs, and fees in
91 a garnishment levy notice; revising methods for
92 delivery of levy notices; amending s. 220.42, F.S.;
93 deleting obsolete language; amending s. 443.131, F.S.;
94 revising exclusions of certain benefit charges from
95 the employer reemployment assistance contribution rate
96 calculation; amending s. 443.171, F.S.; requiring the
97 Department of Economic Opportunity and its tax
98 collection service provider to comply with
99 requirements of the federal Treasury Offset Program;
100 authorizing the department or the tax collection
101 service provider to adopt rules; providing an
102 effective date.
103
104 Be It Enacted by the Legislature of the State of Florida:
105
106 Section 1. Paragraph (c) is added to subsection (1) of
107 section 72.011, Florida Statutes, to read:
108 72.011 Jurisdiction of circuit courts in specific tax
109 matters; administrative hearings and appeals; time for
110 commencing action; parties; deposits.—
111 (1)
112 (c) A taxpayer may not submit records pertaining to an
113 assessment or refund claim as evidence in any proceeding under
114 this section if those records were available to, or required to
115 be kept by, the taxpayer and were not timely provided to the
116 Department of Revenue after a written request for the records
117 during the audit or protest period and before submission of a
118 petition for hearing pursuant to chapter 120 or the filing of an
119 action under paragraph (a), unless the taxpayer demonstrates to
120 the court or presiding officer good cause for its failure to
121 previously provide such records to the department. Good cause
122 may include, but is not limited to, circumstances where a
123 taxpayer was unable to originally provide records under
124 extraordinary circumstances as defined in s. 213.21(10)(d)2.
125 Section 2. Paragraph (b) of subsection (14) of section
126 120.80, Florida Statutes, is amended to read:
127 120.80 Exceptions and special requirements; agencies.—
128 (14) DEPARTMENT OF REVENUE.—
129 (b) Taxpayer contest proceedings.—
130 1. In any administrative proceeding brought pursuant to
131 this chapter as authorized by s. 72.011(1), the taxpayer shall
132 be designated the “petitioner” and the Department of Revenue
133 shall be designated the “respondent,” except that for actions
134 contesting an assessment or denial of refund under chapter 207,
135 the Department of Highway Safety and Motor Vehicles shall be
136 designated the “respondent,” and for actions contesting an
137 assessment or denial of refund under chapters 210, 550, 561,
138 562, 563, 564, and 565, the Department of Business and
139 Professional Regulation shall be designated the “respondent.”
140 2. In any such administrative proceeding, the applicable
141 department’s burden of proof, except as otherwise specifically
142 provided by general law, shall be limited to a showing that an
143 assessment has been made against the taxpayer and the factual
144 and legal grounds upon which the applicable department made the
145 assessment.
146 3.a. Before Prior to filing a petition under this chapter,
147 the taxpayer shall pay to the applicable department the amount
148 of taxes, penalties, and accrued interest assessed by that
149 department which are not being contested by the taxpayer.
150 Failure to pay the uncontested amount shall result in the
151 dismissal of the action and imposition of an additional penalty
152 of 25 percent of the amount taxed.
153 b. The requirements of s. 72.011(2) and (3)(a) are
154 jurisdictional for any action under this chapter to contest an
155 assessment or denial of refund by the Department of Revenue, the
156 Department of Highway Safety and Motor Vehicles, or the
157 Department of Business and Professional Regulation.
158 4. Except as provided in s. 220.719, further collection and
159 enforcement of the contested amount of an assessment for
160 nonpayment or underpayment of any tax, interest, or penalty
161 shall be stayed beginning on the date a petition is filed. Upon
162 entry of a final order, an agency may resume collection and
163 enforcement action.
164 5. The prevailing party, in a proceeding under ss. 120.569
165 and 120.57 authorized by s. 72.011(1), may recover all legal
166 costs incurred in such proceeding, including reasonable attorney
167 attorney’s fees, if the losing party fails to raise a
168 justiciable issue of law or fact in its petition or response.
169 6. Upon review pursuant to s. 120.68 of final agency action
170 concerning an assessment of tax, penalty, or interest with
171 respect to a tax imposed under chapter 212, or the denial of a
172 refund of any tax imposed under chapter 212, if the court finds
173 that the Department of Revenue improperly rejected or modified a
174 conclusion of law, the court may award reasonable attorney
175 attorney’s fees and reasonable costs of the appeal to the
176 prevailing appellant.
177 7. A taxpayer may not submit records pertaining to an
178 assessment or refund claim as evidence in any proceeding brought
179 pursuant to this chapter as authorized by s. 72.011(1) if those
180 records were available to, or required to be kept by, the
181 taxpayer and were not timely provided to the Department of
182 Revenue after a written request for the records during the audit
183 or protest period and before submission of a petition for
184 hearing under this chapter, unless the taxpayer demonstrates
185 good cause to the presiding officer for its failure to
186 previously provide such records to the department. Good cause
187 may include, but is not limited to, circumstances where a
188 taxpayer was unable to originally provide records under
189 extraordinary circumstances as defined in s. 213.21(10)(d)2.
190 Section 3. Paragraph (f) is added to subsection (4) of
191 section 202.34, Florida Statutes, and subsection (6) is added to
192 that section, to read:
193 202.34 Records required to be kept; power to inspect; audit
194 procedure.—
195 (4)
196 (f) Once the notification required by paragraph (a) is
197 issued, the department, at any time, may respond to contact
198 initiated by a taxpayer to discuss the audit, and the taxpayer
199 may provide records or other information, electronically or
200 otherwise, to the department. The department may examine, at any
201 time, documentation and other information voluntarily provided
202 by the taxpayer, its representative, or other parties;
203 information already in the department’s possession; or publicly
204 available information. The department’s examination of such
205 information does not mean an audit has commenced if the review
206 takes place within 60 days after the notice of intent to conduct
207 an audit. The requirement in paragraph (a) does not limit the
208 department in making initial contact with the taxpayer to
209 confirm receipt of the notification or to confirm the date that
210 the audit will begin. If the taxpayer has not previously waived
211 the 60-day notice period and believes the department commenced
212 the audit prior to the 61st day, the taxpayer must object in
213 writing to the department before the issuance of an assessment
214 or the objection is waived. If the objection is not waived and
215 it is determined that the audit was commenced before the 61st
216 day after the issuance of the notice of intent to audit, the
217 tolling period provided for in s. 213.345 is considered lifted
218 for the number of days equal to the difference between the date
219 the audit commenced and the 61st day after the date of the
220 department’s notice of intent to audit.
221 (6) The department may adopt rules to administer this
222 section.
223 Section 4. Paragraph (a) of subsection (4) of section
224 202.36, Florida Statutes, is amended to read:
225 202.36 Departmental powers; hearings; distress warrants;
226 bonds; subpoenas and subpoenas duces tecum.—
227 (4)(a) The department may issue subpoenas or subpoenas
228 duces tecum compelling the attendance and testimony of witnesses
229 and the production of books, records, written materials, and
230 electronically recorded information. Subpoenas must be issued
231 with the written and signed approval of the executive director
232 or his or her designee on a written and sworn application by any
233 employee of the department. The application must set forth the
234 reason for the application, the name of the person subpoenaed,
235 the time and place of appearance of the witness, and a
236 description of any books, records, or electronically recorded
237 information to be produced, together with a statement by the
238 applicant that the department has unsuccessfully attempted other
239 reasonable means of securing information and that the testimony
240 of the witness or the written or electronically recorded
241 materials sought in the subpoena are necessary for the
242 collection of taxes, penalty, or interest or the enforcement of
243 the taxes levied or administered under this chapter. A subpoena
244 shall be served in the manner provided by law and by the Florida
245 Rules of Civil Procedure and shall be returnable only during
246 regular business hours and at least 20 calendar days after the
247 date of service of the subpoena. Any subpoena to which this
248 subsection applies must identify the taxpayer to whom the
249 subpoena relates and to whom the records pertain and must
250 provide other information to enable the person subpoenaed to
251 locate the records required under the subpoena. The department
252 shall give notice to the taxpayer to whom the subpoena relates
253 within 3 days after the day on which the service of the subpoena
254 is made. Within 14 days after service of the subpoena, the
255 person to whom the subpoena is directed may serve written
256 objection to the inspection or copying of any of the designated
257 materials. If objection is made, the department may not inspect
258 or copy the materials, except pursuant to an order of the
259 circuit court. If an objection is made, the department may
260 petition any circuit court for an order to comply with the
261 subpoena. The subpoena must contain a written notice of the
262 right to object to the subpoena. Every subpoena served upon the
263 witness or custodian of records must be accompanied by a copy of
264 the provisions of this subsection. If a person refuses to obey a
265 subpoena or subpoena duces tecum, the department may apply to
266 any circuit court of this state to enforce compliance with the
267 subpoena. Witnesses are entitled to be paid a mileage allowance
268 and witness fees as authorized for witnesses in civil cases. The
269 failure of a taxpayer to provide documents available to, or
270 required to be kept by, the taxpayer and requested by a subpoena
271 issued under this section creates a rebuttable presumption that
272 the resulting proposed final agency action by the department, as
273 to the requested documents, is correct and that the requested
274 documents not produced by the taxpayer would be adverse to the
275 taxpayer’s position as to the proposed final agency action. If a
276 taxpayer fails to provide documents requested by a subpoena
277 issued under this section, the department may make an assessment
278 from an estimate based upon the best information then available
279 to it for the taxable period of retail sales of the taxpayer,
280 together with any accrued interest and penalties. The department
281 shall inform the taxpayer of the reason for the estimate and the
282 information and methodology used to derive the estimate. The
283 assessment shall be considered prima facie correct, and the
284 taxpayer shall have the burden of showing any error in it. The
285 presumption and authority to use estimates for the purpose of an
286 assessment under this paragraph do not apply solely because a
287 taxpayer or its representative requests a conference to
288 negotiate the production of a sample of records demanded by a
289 subpoena.
290 Section 5. Subsection (4) of section 206.14, Florida
291 Statutes, is amended to read:
292 206.14 Inspection of records; audits; hearings; forms;
293 rules and regulations.—
294 (4) If any person unreasonably refuses access to such
295 records, books, papers or other documents, or equipment, or if
296 any person fails or refuses to obey such subpoenas duces tecum
297 or to testify, except for lawful reasons, before the department
298 or any of its authorized agents, the department shall certify
299 the names and facts to the clerk of the circuit court of any
300 county; and the circuit court shall enter such order against
301 such person in the premises as the enforcement of this law and
302 justice requires. The failure of a taxpayer to provide documents
303 available to, or required to be kept by, the taxpayer and
304 requested by a subpoena issued under this section creates a
305 rebuttable presumption that the resulting proposed final agency
306 action by the department, as to the requested documents, is
307 correct and that the requested documents not produced by the
308 taxpayer would be adverse to the taxpayer’s position as to the
309 proposed final agency action. If a taxpayer fails to provide
310 documents requested by a subpoena issued under this section, the
311 department may make an assessment from an estimate of the
312 taxpayer’s liability based upon the best information then
313 available to it. The department shall inform the taxpayer of the
314 reason for the estimate and the information and methodology used
315 to derive the estimate. The assessment shall be considered prima
316 facie correct, and the taxpayer shall have the burden of showing
317 any error in it. The presumption and authority to use estimates
318 for the purpose of an assessment under this subsection do not
319 apply solely because a taxpayer or its representative requests a
320 conference to negotiate the production of a sample of records
321 demanded by a subpoena.
322 Section 6. Subsection (1) of section 206.9931, Florida
323 Statutes, is amended to read:
324 206.9931 Administrative provisions.—
325 (1) Any person producing in, importing into, or causing to
326 be imported into this state taxable pollutants for sale, use, or
327 otherwise and who is not registered or licensed pursuant to
328 other parts of this chapter is hereby required to register and
329 become licensed for the purposes of this part. Such person shall
330 register as either a producer or importer of pollutants and
331 shall be subject to all applicable registration and licensing
332 provisions of this chapter, as if fully set out in this part and
333 made expressly applicable to the taxes imposed herein,
334 including, but not limited to, ss. 206.02, 206.021, 206.022,
335 206.025, 206.03, 206.04, and 206.05. For the purposes of this
336 section, registrations required exclusively for this part shall
337 be made within 90 days of July 1, 1986, for existing businesses,
338 or before prior to the first production or importation of
339 pollutants for businesses created after July 1, 1986. The fee
340 for registration shall be $30. Failure to timely register is a
341 misdemeanor of the first degree, punishable as provided in s.
342 775.082 or s. 775.083.
343 Section 7. Paragraph (b) of subsection (3) of section
344 211.125, Florida Statutes, is amended to read:
345 211.125 Administration of law; books and records; powers of
346 the department; refunds; enforcement provisions;
347 confidentiality.—
348 (3)
349 (b) The department may shall have the power to inspect or
350 examine the books, records, or papers of any operator, producer,
351 purchaser, royalty interest owner, taxpayer, or transporter of
352 taxable products which are reasonably required for the purposes
353 of this part and may require such person to testify under oath
354 or affirmation or to answer competent questions touching upon
355 such person’s business or production of taxable products in this
356 the state.
357 1. The department may issue subpoenas to compel third
358 parties to testify or to produce records or other evidence held
359 by them.
360 2. Any duly authorized representative of the department may
361 administer an oath or affirmation.
362 3. If any person fails to comply with a request of the
363 department for the inspection of records, fails to give
364 testimony or respond to competent questions, or fails to comply
365 with a subpoena, a circuit court having jurisdiction over such
366 person may, upon application by the department, issue orders
367 necessary to secure compliance. The failure of a taxpayer to
368 provide documents available to, or required to be kept by, the
369 taxpayer and requested by a subpoena issued under this section
370 creates a rebuttable presumption that the resulting proposed
371 final agency action by the department, as to the requested
372 documents, is correct and that the requested documents not
373 produced by the taxpayer would be adverse to the taxpayer’s
374 position as to the proposed final agency action. If a taxpayer
375 fails to provide documents requested by a subpoena issued under
376 this section, the department may make an assessment from an
377 estimate based upon the best information then available to it.
378 The department shall inform the taxpayer of the reason for the
379 estimate and the information and methodology used to derive the
380 estimate. The assessment shall be considered prima facie
381 correct, and the taxpayer shall have the burden of showing any
382 error in it.
383 Section 8. Paragraph (a) of subsection (1) of section
384 212.05, Florida Statutes, is amended to read:
385 212.05 Sales, storage, use tax.—It is hereby declared to be
386 the legislative intent that every person is exercising a taxable
387 privilege who engages in the business of selling tangible
388 personal property at retail in this state, including the
389 business of making or facilitating remote sales; who rents or
390 furnishes any of the things or services taxable under this
391 chapter; or who stores for use or consumption in this state any
392 item or article of tangible personal property as defined herein
393 and who leases or rents such property within the state.
394 (1) For the exercise of such privilege, a tax is levied on
395 each taxable transaction or incident, which tax is due and
396 payable as follows:
397 (a)1.a. At the rate of 6 percent of the sales price of each
398 item or article of tangible personal property when sold at
399 retail in this state, computed on each taxable sale for the
400 purpose of remitting the amount of tax due the state, and
401 including each and every retail sale.
402 b. Each occasional or isolated sale of an aircraft, boat,
403 mobile home, or motor vehicle of a class or type which is
404 required to be registered, licensed, titled, or documented in
405 this state or by the United States Government is shall be
406 subject to tax at the rate provided in this paragraph. The
407 department shall by rule adopt any nationally recognized
408 publication for valuation of used motor vehicles as the
409 reference price list for any used motor vehicle which is
410 required to be licensed pursuant to s. 320.08(1), (2), (3)(a),
411 (b), (c), or (e), or (9). If any party to an occasional or
412 isolated sale of such a vehicle reports to the tax collector a
413 sales price which is less than 80 percent of the average loan
414 price for the specified model and year of such vehicle as listed
415 in the most recent reference price list, the tax levied under
416 this paragraph shall be computed by the department on such
417 average loan price unless the parties to the sale have provided
418 to the tax collector an affidavit signed by each party, or other
419 substantial proof, stating the actual sales price. Any party to
420 such sale who reports a sales price less than the actual sales
421 price is guilty of a misdemeanor of the first degree, punishable
422 as provided in s. 775.082 or s. 775.083. The department shall
423 collect or attempt to collect from such party any delinquent
424 sales taxes. In addition, such party shall pay any tax due and
425 any penalty and interest assessed plus a penalty equal to twice
426 the amount of the additional tax owed. Notwithstanding any other
427 provision of law, the Department of Revenue may waive or
428 compromise any penalty imposed pursuant to this subparagraph.
429 2. This paragraph does not apply to the sale of a boat or
430 aircraft by or through a registered dealer under this chapter to
431 a purchaser who, at the time of taking delivery, is a
432 nonresident of this state, does not make his or her permanent
433 place of abode in this state, and is not engaged in carrying on
434 in this state any employment, trade, business, or profession in
435 which the boat or aircraft will be used in this state, or is a
436 corporation none of the officers or directors of which is a
437 resident of, or makes his or her permanent place of abode in,
438 this state, or is a noncorporate entity that has no individual
439 vested with authority to participate in the management,
440 direction, or control of the entity’s affairs who is a resident
441 of, or makes his or her permanent abode in, this state. For
442 purposes of this exemption, either a registered dealer acting on
443 his or her own behalf as seller, a registered dealer acting as
444 broker on behalf of a seller, or a registered dealer acting as
445 broker on behalf of the nonresident purchaser may be deemed to
446 be the selling dealer. This exemption is shall not be allowed
447 unless:
448 a. The nonresident purchaser removes a qualifying boat, as
449 described in sub-subparagraph f., from this the state within 90
450 days after the date of purchase or extension, or the nonresident
451 purchaser removes a nonqualifying boat or an aircraft from this
452 state within 10 days after the date of purchase or, when the
453 boat or aircraft is repaired or altered, within 20 days after
454 completion of the repairs or alterations; or if the aircraft
455 will be registered in a foreign jurisdiction and:
456 (I) Application for the aircraft’s registration is properly
457 filed with a civil airworthiness authority of a foreign
458 jurisdiction within 10 days after the date of purchase;
459 (II) The nonresident purchaser removes the aircraft from
460 this the state to a foreign jurisdiction within 10 days after
461 the date the aircraft is registered by the applicable foreign
462 airworthiness authority; and
463 (III) The aircraft is operated in this the state solely to
464 remove it from this the state to a foreign jurisdiction.
465
466 For purposes of this sub-subparagraph, the term “foreign
467 jurisdiction” means any jurisdiction outside of the United
468 States or any of its territories;
469 b. The nonresident purchaser, within 90 days after from the
470 date of departure, provides the department with written proof
471 that the nonresident purchaser licensed, registered, titled, or
472 documented the boat or aircraft outside this the state. If such
473 written proof is unavailable, within 90 days the nonresident
474 purchaser must shall provide proof that the nonresident
475 purchaser applied for such license, title, registration, or
476 documentation. The nonresident purchaser shall forward to the
477 department proof of title, license, registration, or
478 documentation upon receipt;
479 c. The nonresident purchaser, within 30 days after removing
480 the boat or aircraft from this state Florida, furnishes the
481 department with proof of removal in the form of receipts for
482 fuel, dockage, slippage, tie-down, or hangaring from outside of
483 this state Florida. The information so provided must clearly and
484 specifically identify the boat or aircraft;
485 d. The selling dealer, within 30 days after the date of
486 sale, provides to the department a copy of the sales invoice,
487 closing statement, bills of sale, and the original affidavit
488 signed by the nonresident purchaser affirming that the
489 nonresident purchaser qualifies for exemption from sales tax
490 pursuant to this subparagraph and attesting that the nonresident
491 purchaser will provide the documentation required to
492 substantiate the exemption claimed under this subparagraph
493 attesting that he or she has read the provisions of this
494 section;
495 e. The seller makes a copy of the affidavit a part of his
496 or her record for as long as required by s. 213.35; and
497 f. Unless the nonresident purchaser of a boat of 5 net tons
498 of admeasurement or larger intends to remove the boat from this
499 state within 10 days after the date of purchase or when the boat
500 is repaired or altered, within 20 days after completion of the
501 repairs or alterations, the nonresident purchaser applies to the
502 selling dealer for a decal which authorizes 90 days after the
503 date of purchase for removal of the boat. The nonresident
504 purchaser of a qualifying boat may apply to the selling dealer
505 within 60 days after the date of purchase for an extension decal
506 that authorizes the boat to remain in this state for an
507 additional 90 days, but not more than a total of 180 days,
508 before the nonresident purchaser is required to pay the tax
509 imposed by this chapter. The department is authorized to issue
510 decals in advance to dealers. The number of decals issued in
511 advance to a dealer shall be consistent with the volume of the
512 dealer’s past sales of boats which qualify under this sub
513 subparagraph. The selling dealer or his or her agent shall mark
514 and affix the decals to qualifying boats in the manner
515 prescribed by the department, before delivery of the boat.
516 (I) The department is hereby authorized to charge dealers a
517 fee sufficient to recover the costs of decals issued, except the
518 extension decal shall cost $425.
519 (II) The proceeds from the sale of decals will be deposited
520 into the administrative trust fund.
521 (III) Decals shall display information to identify the boat
522 as a qualifying boat under this sub-subparagraph, including, but
523 not limited to, the decal’s date of expiration.
524 (IV) The department is authorized to require dealers who
525 purchase decals to file reports with the department and may
526 prescribe all necessary records by rule. All such records are
527 subject to inspection by the department.
528 (V) Any dealer or his or her agent who issues a decal
529 falsely, fails to affix a decal, mismarks the expiration date of
530 a decal, or fails to properly account for decals will be
531 considered prima facie to have committed a fraudulent act to
532 evade the tax and will be liable for payment of the tax plus a
533 mandatory penalty of 200 percent of the tax, and shall be liable
534 for fine and punishment as provided by law for a conviction of a
535 misdemeanor of the first degree, as provided in s. 775.082 or s.
536 775.083.
537 (VI) Any nonresident purchaser of a boat who removes a
538 decal before permanently removing the boat from this the state,
539 or defaces, changes, modifies, or alters a decal in a manner
540 affecting its expiration date before its expiration, or who
541 causes or allows the same to be done by another, will be
542 considered prima facie to have committed a fraudulent act to
543 evade the tax and will be liable for payment of the tax plus a
544 mandatory penalty of 200 percent of the tax, and shall be liable
545 for fine and punishment as provided by law for a conviction of a
546 misdemeanor of the first degree, as provided in s. 775.082 or s.
547 775.083.
548 (VII) The department is authorized to adopt rules necessary
549 to administer and enforce this subparagraph and to publish the
550 necessary forms and instructions.
551 (VIII) The department is hereby authorized to adopt
552 emergency rules pursuant to s. 120.54(4) to administer and
553 enforce the provisions of this subparagraph.
554
555 If the nonresident purchaser fails to remove the qualifying boat
556 from this state within the maximum 180 days after purchase or a
557 nonqualifying boat or an aircraft from this state within 10 days
558 after purchase or, when the boat or aircraft is repaired or
559 altered, within 20 days after completion of such repairs or
560 alterations, or permits the boat or aircraft to return to this
561 state within 6 months after from the date of departure, except
562 as provided in s. 212.08(7)(fff), or if the nonresident
563 purchaser fails to furnish the department with any of the
564 documentation required by this subparagraph within the
565 prescribed time period, the nonresident purchaser is shall be
566 liable for use tax on the cost price of the boat or aircraft
567 and, in addition thereto, payment of a penalty to the Department
568 of Revenue equal to the tax payable. This penalty shall be in
569 lieu of the penalty imposed by s. 212.12(2). The maximum 180-day
570 period following the sale of a qualifying boat tax-exempt to a
571 nonresident may not be tolled for any reason.
572 Section 9. Subsections (2) and (5) of section 212.13,
573 Florida Statutes, are amended, and subsection (7) is added to
574 that section, to read:
575 212.13 Records required to be kept; power to inspect; audit
576 procedure.—
577 (2)(a) Each dealer, as defined in this chapter, shall
578 secure, maintain, and keep as long as required by s. 213.35 a
579 complete record of tangible personal property or services
580 received, used, sold at retail, distributed or stored, leased or
581 rented by said dealer, together with invoices, bills of lading,
582 gross receipts from such sales, and other pertinent records and
583 papers as may be required by the department for the reasonable
584 administration of this chapter. All such records must be made
585 available to the department at reasonable times and places and
586 by reasonable means, including in an electronic format when so
587 kept by the dealer. Any dealer subject to this chapter who
588 violates this subsection commits a misdemeanor of the first
589 degree, punishable as provided in s. 775.082 or s. 775.083. If,
590 however, any subsequent offense involves intentional destruction
591 of such records with an intent to evade payment of or deprive
592 the state of any tax revenues, such subsequent offense is a
593 felony of the third degree, punishable as provided in s. 775.082
594 or s. 775.083.
595 (b)1. As used in this paragraph, the term:
596 a. “Dealer” means a dealer, as defined in s. 212.06(2),
597 which is licensed under chapter 561.
598 b. “Division” means the Division of Alcoholic Beverages and
599 Tobacco of the Department of Business and Professional
600 Regulation.
601 c. “Transferor” means an entity or person, licensed under
602 chapter 561, who sells and delivers alcoholic beverages to a
603 dealer for purposes of resale.
604 2. Dealers shall maintain records of all monthly sales and
605 all monthly purchases of alcoholic beverages and produce such
606 records for inspection by the department. During the course of
607 an audit, if the department has made a formal demand for such
608 records and a dealer has failed to comply with such a demand,
609 the department may issue a written request for such records to
610 the dealer, allowing the dealer an additional 20 days to provide
611 the requested records or show reasonable cause why the records
612 cannot be produced. If the dealer fails to produce the requested
613 records or show reasonable cause why the records cannot be
614 produced, the department may issue a notice of intent to suspend
615 the dealer’s resale certificate. The dealer shall then have 20
616 days to file a petition with the department challenging the
617 proposed action pursuant to s. 120.569. If the dealer fails to
618 timely file a petition or the department prevails in a
619 proceeding challenging the notice, the department shall suspend
620 the resale certificate.
621 3. If a dealer’s resale certificate is suspended under this
622 subsection in the course of the dealer’s first audit before the
623 department for sales and use tax, the failure of a dealer to
624 comply is deemed sufficient cause under s. 561.29(1)(a) for the
625 division to suspend the dealer’s license and the department
626 shall promptly notify the division and the dealer of such
627 failure for further appropriate action by the division. The
628 division shall lift the suspension of the license and the
629 department shall lift the suspension of the resale certificate
630 if the dealer provides the necessary records to conduct the
631 audit prior to issuance of an estimated assessment, posts a bond
632 with the department in the amount of an estimated assessment to
633 ensure payment of the assessment, or fully pays any tax,
634 penalties, and interest owed.
635 4. If a dealer’s resale certificate is suspended under this
636 subsection and the audit is not the dealer’s first audit before
637 the department for sales and use tax, such failure is sufficient
638 cause under s. 561.29(1)(a) for the division to revoke the
639 dealer’s license and the department shall promptly notify the
640 division and the dealer of such failure for further appropriate
641 action by the division.
642 5. The department shall notify the division when a dealer’s
643 resale certificate is suspended and shall publish a list of
644 dealers whose resale certificates have been suspended as
645 authorized by s. 213.053(21). The division shall include notice
646 of such suspension in its license verification database or
647 provide a link to the department’s published list from the
648 division’s license verification page.
649 6. A transferor may not accept orders from or deliver
650 alcoholic beverages to a dealer more than 7 days, inclusive of
651 any Saturday, Sunday, or legal holiday, after the date the
652 department publishes the list under subparagraph 5. identifying
653 that the dealer’s resale certificate has been suspended.
654 7. A transferor who sells alcoholic beverages to a dealer
655 whose resale certificate has been suspended is not responsible
656 for any tax, penalty, or interest due if the alcoholic beverages
657 are delivered no more than 7 days, inclusive of any Saturday,
658 Sunday, or legal holiday, after the date of publication of the
659 suspension.
660 8. The department may adopt rules to implement this
661 paragraph.
662 (5)(a) The department shall send written notification at
663 least 60 days before prior to the date an auditor is scheduled
664 to begin an audit, informing the taxpayer of the audit. The
665 department is not required to give 60 days’ prior notification
666 of a forthcoming audit in any instance in which the taxpayer
667 requests an emergency audit.
668 (b) Such written notification must shall contain:
669 1. The approximate date on which the auditor is scheduled
670 to begin the audit.
671 2. A reminder that all of the records, receipts, invoices,
672 resale certificates, and related documentation of the taxpayer
673 must be made available to the auditor.
674 3. Any other requests or suggestions the department may
675 deem necessary.
676 (c) Only records, receipts, invoices, resale certificates,
677 and related documentation that which are available to the
678 auditor when such audit begins are shall be deemed acceptable
679 for the purposes of conducting such audit. A resale certificate
680 containing a date before prior to the date the audit commences
681 is shall be deemed acceptable documentation of the specific
682 transaction or transactions which occurred in the past, for the
683 purpose of conducting an audit.
684 (d) The provisions of this chapter concerning fraudulent or
685 improper records, receipts, invoices, resale certificates, and
686 related documentation shall apply when conducting any audit.
687 (e) The requirement in paragraph (a) of 60 days’ written
688 notification does not apply to the distress or jeopardy
689 situations referred to in s. 212.14 or s. 212.15.
690 (f) Once the notification required by paragraph (a) is
691 issued, the department, at any time, may respond to contact
692 initiated by a taxpayer to discuss the audit, and the taxpayer
693 may provide documentation or other information, electronically
694 or otherwise, to the department. The department may examine, at
695 any time, documentation and other information voluntarily
696 provided by the taxpayer, its representative, or other parties;
697 information already in the department’s possession; or publicly
698 available information. The department’s examination of such
699 information does not mean an audit has commenced if the review
700 takes place within 60 days after the notice of intent to conduct
701 an audit. The requirement in paragraph (a) does not limit the
702 department in making initial contact with the taxpayer to
703 confirm receipt of the notification or to confirm the date that
704 the audit will begin. If the taxpayer has not previously waived
705 the 60-day notice period and believes the department commenced
706 the audit prior to the 61st day, the taxpayer must object in
707 writing to the department before the issuance of an assessment
708 or else the objection is waived. If the objection is not waived
709 and it is determined that the audit was commenced before the
710 61st day after the issuance of the notice of intent to audit,
711 the tolling period provided for in s. 213.345 is considered
712 lifted for the number of days equal to the difference between
713 the date the audit commenced and the 61st day after the date of
714 the department’s notice of intent to audit.
715 (7) The department may adopt rules to administer this
716 section.
717 Section 10. Paragraph (a) of subsection (7) of section
718 212.14, Florida Statutes, is amended to read:
719 212.14 Departmental powers; hearings; distress warrants;
720 bonds; subpoenas and subpoenas duces tecum.—
721 (7)(a) For purposes of collection and enforcement of taxes,
722 penalties, and interest levied under this chapter, the
723 department may issue subpoenas or subpoenas duces tecum
724 compelling the attendance and testimony of witnesses and the
725 production of books, records, written materials, and
726 electronically recorded information. Subpoenas shall be issued
727 with the written and signed approval of the executive director
728 or his or her designee on written and sworn application by any
729 employee of the department. The application must set forth the
730 reason for the application, the name of the person subpoenaed,
731 the time and place of appearance of the witness, and a
732 description of any books, records, or electronically recorded
733 information to be produced, together with a statement by the
734 applicant that the department has unsuccessfully attempted other
735 reasonable means of securing information and that the testimony
736 of the witness or the written or electronically recorded
737 materials sought in the subpoena are necessary for the
738 collection of taxes, penalty, or interest or the enforcement of
739 the taxes levied under this chapter. A subpoena must shall be
740 served in the manner provided by law and by the Florida Rules of
741 Civil Procedure and is shall be returnable only during regular
742 business hours and at least 20 calendar days after the date of
743 service of the subpoena. Any subpoena to which this subsection
744 applies must shall identify the taxpayer to whom the subpoena
745 relates and to whom the records pertain and must shall provide
746 other information to enable the person subpoenaed to locate the
747 records required under the subpoena. The department shall give
748 notice to the taxpayer to whom the subpoena relates within 3
749 days after of the day on which the service of the subpoena is
750 made. Within 14 days after service of the subpoena, the person
751 to whom the subpoena is directed may serve written objection to
752 inspection or copying of any of the designated materials. If
753 objection is made, the department is shall not be entitled to
754 inspect and copy the materials, except pursuant to an order of
755 the circuit court. If an objection is made, the department may
756 petition any circuit court for an order to comply with the
757 subpoena. The subpoena must shall contain a written notice of
758 the right to object to the subpoena. Every subpoena served upon
759 the witness or records custodian must be accompanied by a copy
760 of the provisions of this subsection. If a person refuses to
761 obey a subpoena or subpoena duces tecum, the department may
762 apply to any circuit court of this state to enforce compliance
763 with the subpoena. Witnesses must shall be paid mileage and
764 witness fees as authorized for witnesses in civil cases. The
765 failure of a taxpayer to provide documents available to, or
766 required to be kept by, the taxpayer and requested by a subpoena
767 issued under this section creates a rebuttable presumption that
768 the resulting proposed final agency action by the department, as
769 to the requested documents, is correct and that the requested
770 documents not produced by the taxpayer would be adverse to the
771 taxpayer’s position as to the proposed final agency action. If a
772 taxpayer fails to provide documents requested by a subpoena
773 issued under this section, the department may make an assessment
774 from an estimate based upon the best information then available
775 to it for the taxable period of retail sales of the taxpayer,
776 together with any accrued interest and penalties. The department
777 shall inform the taxpayer of the reason for the estimate and the
778 information and methodology used to derive the estimate. The
779 assessment shall be considered prima facie correct, and the
780 taxpayer shall have the burden of showing any error in it. The
781 presumption and authority to use estimates for the purpose of an
782 assessment under this paragraph do not apply solely because a
783 taxpayer or its representative requests a conference to
784 negotiate the production of a sample of records demanded by a
785 subpoena.
786 Section 11. Section 213.051, Florida Statutes, is amended
787 to read:
788 213.051 Service of subpoenas.—
789 (1) For the purpose of administering and enforcing the
790 provisions of the revenue laws of this state, the executive
791 director of the Department of Revenue, or any of his or her
792 assistants designated in writing by the executive director, may
793 shall be authorized to serve subpoenas and subpoenas duces tecum
794 issued by the state attorney relating to investigations
795 concerning the taxes enumerated in s. 213.05.
796 (2) In addition to the procedures for service prescribed by
797 chapter 48, the department may serve subpoenas it issues
798 pursuant to ss. 202.36, 206.14, 211.125, 212.14, and 220.735
799 upon any business registered with the department at the address
800 on file with the department if it received correspondence from
801 the business from that address within 30 days before issuance of
802 the subpoena or if the address is listed with the Department of
803 State Division of Corporations as a principal or business
804 address. If a business’ address is not in this state, service is
805 made upon proof of delivery by certified or registered mail or
806 under the notice provisions of s. 213.0537.
807 Section 12. Present subsections (21) and (22) of section
808 213.053, Florida Statutes, are redesignated as subsections (22)
809 and (23), respectively, and a new subsection (21) is added to
810 that section, to read:
811 213.053 Confidentiality and information sharing.—
812 (21)(a) The department shall publish a list of dealers
813 whose resale certificates have been suspended pursuant to s.
814 212.13(2)(b). The list may contain the name of the dealer,
815 including the name under which the dealer does business; the
816 address of the dealer; the dealer’s employer identification
817 number or other taxpayer identification number; and the date on
818 which the dealer was added to the list.
819 (b) The department shall update the list daily as needed to
820 reflect additions to and deletions from the list.
821 (c) The department may adopt rules to administer this
822 subsection.
823 Section 13. Section 213.06, Florida Statutes, is amended to
824 read:
825 213.06 Rules of department; circumstances requiring
826 emergency rules.—
827 (1) The Department of Revenue may has the authority to
828 adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
829 provisions of the revenue laws.
830 (2) The executive director of the department may adopt
831 emergency rules pursuant to s. 120.54 on behalf of the
832 department when the effective date of a legislative change
833 occurs sooner than 120 60 days after the close of a legislative
834 session in which enacted or after the Governor approves or fails
835 to veto the legislative change, whichever is later, and the
836 change affects a tax rate or a collection or reporting procedure
837 which affects a substantial number of dealers or persons subject
838 to the tax change or procedure. The Legislature finds that such
839 circumstances qualify as an exception to the prerequisite of a
840 finding of immediate danger to the public health, safety, or
841 welfare as set forth in s. 120.54(4)(a) and qualify as
842 circumstances requiring an emergency rule. Emergency rules
843 adopted under this subsection are exempt from s. 120.54(4)(c),
844 remain in effect for 6 months or until replaced by rules adopted
845 under the nonemergency rulemaking procedures of the
846 Administrative Procedure Act, and may be renewed for no more
847 than 3 additional 6-month periods during the pendency of
848 procedures to adopt permanent rules addressing the subject of
849 the emergency rules.
850 (3) The grants of rulemaking authority in subsections (1)
851 and (2) are sufficient to allow the department to adopt rules
852 implementing all revenue laws administered by the department.
853 Each revenue law administered by the department is an enabling
854 statute authorizing the department to implement it, regardless
855 of whether the enabling statute contains its own grant of
856 rulemaking authority.
857 Section 14. Paragraph (b) of subsection (1) and paragraph
858 (a) of subsection (3) of section 213.21, Florida Statutes, are
859 amended, and subsections (11) and (12) are added to that
860 section, to read:
861 213.21 Informal conferences; compromises.—
862 (1)
863 (b) The statute of limitations upon the issuance of final
864 assessments and the period for filing a claim for refund as
865 required by s. 215.26(2) for any transactions occurring during
866 the audit period shall be tolled during the period in which the
867 taxpayer is engaged in a procedure under this section.
868 (3)(a) A taxpayer’s liability for any tax or interest
869 specified in s. 72.011(1) may be compromised by the department
870 upon the grounds of doubt as to liability for or collectibility
871 of such tax or interest. A taxpayer’s liability for interest
872 under any of the chapters specified in s. 72.011(1) shall be
873 settled or compromised in whole or in part whenever or to the
874 extent that the department determines that the delay in the
875 determination of the amount due is attributable to the action or
876 inaction of the department. A taxpayer’s liability for penalties
877 under any of the chapters specified in s. 72.011(1) greater than
878 25 percent of the tax must may be settled or compromised if it
879 is determined by the department determines that the
880 noncompliance is not due to reasonable cause and not to willful
881 negligence, willful neglect, or fraud. In addition, a taxpayer’s
882 liability for penalties under any of the chapters specified in
883 s. 72.011(1) up to and including 25 percent of the tax may be
884 settled or compromised if the department determines that
885 reasonable cause exists and the penalties greater than 25
886 percent of the tax were compromised because the noncompliance is
887 not due to willful negligence, willful neglect, or fraud. There
888 is a rebuttable presumption that a taxpayer’s noncompliance is
889 due to willful negligence, willful neglect, or fraud when
890 adequate records as requested by the department are not provided
891 to the department before the issuance of an assessment. The
892 presumption may be rebutted by a showing of reasonable cause why
893 adequate records as requested were not provided or were
894 unavailable to the taxpayer. The facts and circumstances are
895 subject to de novo review to determine the existence of
896 reasonable cause in any administrative proceeding or judicial
897 action challenging an assessment of penalty under any of the
898 chapters specified in s. 72.011(1). A taxpayer who establishes
899 reasonable reliance on the written advice issued by the
900 department to the taxpayer is will be deemed to have shown
901 reasonable cause for the noncompliance. In addition, a
902 taxpayer’s liability for penalties under any of the chapters
903 specified in s. 72.011(1) in excess of 25 percent of the tax
904 shall be settled or compromised if the department determines
905 that the noncompliance is due to reasonable cause and not to
906 willful negligence, willful neglect, or fraud. The department
907 shall maintain records of all compromises, and the records shall
908 state the basis for the compromise. The records of compromise
909 under this paragraph are shall not be subject to disclosure
910 pursuant to s. 119.07(1) and are shall be considered
911 confidential information governed by the provisions of s.
912 213.053.
913 (11) Following the expiration of time for a taxpayer to
914 challenge an assessment or a denial of a refund as provided in
915 s. 72.011, the department may consider a request to settle or
916 compromise any tax, interest, penalty, or other liability under
917 this section if the taxpayer demonstrates that the failure to
918 initiate a timely challenge was due to a qualified event that
919 directly impacted compliance with that section. For purposes of
920 this subsection, a qualified event is limited to the occurrence
921 of events during an audit or the expired protest period which
922 were beyond the control of the taxpayer, including, but not
923 limited to, the death or life-threatening injury or illness of
924 the taxpayer or an immediate family member of the taxpayer; the
925 death or life-threatening injury or illness of the responsible
926 party that controlled, managed, or directed the affected
927 business entity; acts of war or terrorism; natural disasters;
928 fire; or other catastrophic loss. The department may not
929 consider a request received more than 180 days after the
930 expiration of time allowed under s. 72.011.
931 (12) Any decision by the department regarding a taxpayer’s
932 request to compromise or settle a liability under this section
933 is not a final order subject to review under chapter 120.
934 Section 15. Section 213.34, Florida Statutes, is amended to
935 read:
936 213.34 Authority to audit.—
937 (1) The Department of Revenue may shall have the authority
938 to audit and examine the accounts, books, or records of all
939 persons who are subject to a revenue law made applicable to this
940 chapter, or otherwise placed under the control and
941 administration of the department, for the purpose of
942 ascertaining the correctness of any return which has been filed
943 or payment which has been made, or for the purpose of making a
944 return where none has been made.
945 (2) The department, or its duly authorized agents, may
946 inspect such books and records necessary to ascertain a
947 taxpayer’s compliance with the revenue laws of this state,
948 provided that the department’s power to make an assessment or
949 grant a refund has not terminated under s. 95.091(3).
950 (a) During the course of an audit, but before the issuance
951 of an assessment other than a jeopardy assessment, the
952 department shall issue to the taxpayer a notice explaining the
953 audit findings. No later than 30 days after the issuance of the
954 notice, the taxpayer may request in writing an exit conference
955 at a mutually agreeable date and time with the department’s
956 audit staff to discuss the audit findings. The exit conference
957 must be conducted no later than 30 days after a request for the
958 conference, unless the taxpayer and the department enter into an
959 agreement to extend the audit tolling period pursuant to s.
960 213.23. The taxpayer shall be given an opportunity at or before
961 the exit conference to provide additional information and
962 documents to the department to rebut the audit findings. Upon
963 the mutual written agreement between the department and the
964 taxpayer to extend the audit tolling period pursuant to s.
965 213.23, the exit conference may be continued to allow the
966 taxpayer additional time to provide information and documents to
967 the department. The department shall review any information
968 provided by the taxpayer and, if the department revises the
969 audit findings, a copy of the revised audit findings must be
970 provided to the taxpayer. Such revision of the audit findings
971 does not provide a right to any additional conference.
972 (b) If an exit conference is timely requested in writing,
973 the limitations in s. 95.091(3) are tolled an additional 60
974 days. If the department fails to offer a taxpayer the
975 opportunity to hold an exit conference despite a timely written
976 request, the limitations period in s. 95.091(3) may not be
977 tolled for the additional 60 days. If the assessment is issued
978 outside of the limitations period, the assessment must be
979 reduced by the amount of those taxes, penalties, and interest
980 for reporting periods outside of the limitations period, as
981 modified by any other tolling or extension provisions.
982 (c) If a request for an exit conference is not timely made,
983 the right to a conference is waived. A taxpayer may also
984 affirmatively waive its right to an exit conference. Failure to
985 hold an exit conference does not preclude the department from
986 issuing an assessment.
987 (d) The department may adopt rules to implement this
988 subsection.
989 (3) The department may correct by credit or refund any
990 overpayment of tax, penalty, or interest revealed by an audit
991 and shall make assessment of any deficiency in tax, penalty, or
992 interest determined to be due.
993 (4) Notwithstanding the provisions of s. 215.26, the
994 department shall offset the overpayment of any tax during an
995 audit period against a deficiency of any tax, penalty, or
996 interest determined to be due during the same audit period.
997 (5) After the application of subsection (4), if the
998 department’s audit finds that the tax paid is more than the
999 correct amount, the department must refund the overpayment that
1000 is within the applicable period provided by s. 215.26. Such
1001 action by the department does not prevent a taxpayer from
1002 challenging the amount of the refund pursuant to chapters 72 and
1003 120 or applying for a refund of additional tax within the
1004 applicable period.
1005 Section 16. Section 213.345, Florida Statutes, is amended
1006 to read:
1007 213.345 Tolling of periods during an audit.—The limitations
1008 in s. 95.091(3) and the period for filing a claim for refund as
1009 required by s. 215.26(2) are shall be tolled for a period of 1
1010 year if the Department of Revenue has, on or after July 1, 1999,
1011 issued a notice of intent to conduct an audit or investigation
1012 of the taxpayer’s account within the applicable period of time.
1013 The 1-year period is tolled upon receipt of written objections
1014 to the subpoena and for the entire pendency of any action that
1015 seeks an order to enforce compliance with or to challenge any
1016 subpoena issued by the department compelling the attendance and
1017 testimony of witnesses and the production of books, records,
1018 written materials, and electronically recorded information. The
1019 department must commence an audit within 120 days after it
1020 issues a notice of intent to conduct an audit, unless the
1021 taxpayer requests a delay. If the taxpayer does not request a
1022 delay and the department does not begin the audit within 120
1023 days after issuing the notice, the tolling period terminates
1024 shall terminate unless the taxpayer and the department enter
1025 into an agreement to extend the period pursuant to s. 213.23. If
1026 the department issues a notice explaining its audit findings
1027 under s. 213.34(2)(a) based on an estimate because the taxpayer
1028 has failed or refuses to provide records, the audit will be
1029 deemed to have commenced for purposes of this section. In the
1030 event the department issues an assessment beyond the tolling
1031 period, the assessment will be considered late and the
1032 assessment shall be reduced by the amount of those taxes,
1033 penalties, and interest for reporting periods outside of the
1034 limitations period, as modified by any other tolling or
1035 extension provisions.
1036 Section 17. Subsections (1), (3), and (6) of section
1037 213.67, Florida Statutes, are amended to read:
1038 213.67 Garnishment.—
1039 (1) If a person is delinquent in the payment of any taxes,
1040 penalties, and interest, additional daily accrued interest,
1041 costs, and fees owed to the department, the executive director
1042 or his or her designee may give notice of the amount of such
1043 delinquency by certified or registered mail, by personal
1044 service, or by electronic means, including, but not limited to,
1045 facsimile transmissions, electronic data interchange, or use of
1046 the Internet, to all persons having in their possession or under
1047 their control any credits or personal property, exclusive of
1048 wages, belonging to the delinquent taxpayer, or owing any debts
1049 to such delinquent taxpayer at the time of receipt by them of
1050 such notice. Thereafter, any person who has been notified may
1051 not transfer or make any other disposition of such credits,
1052 other personal property, or debts until the executive director
1053 or his or her designee consents to a transfer or disposition or
1054 until 60 days after the receipt of such notice. However, the
1055 credits, other personal property, or debts that exceed the
1056 delinquent amount stipulated in the notice are not subject to
1057 this section, wherever held, if the taxpayer does not have a
1058 prior history of tax delinquencies. If during the effective
1059 period of the notice to withhold, any person so notified makes
1060 any transfer or disposition of the property or debts required to
1061 be withheld under this section, he or she is liable to the state
1062 for any indebtedness owed to the department by the person with
1063 respect to whose obligation the notice was given to the extent
1064 of the value of the property or the amount of the debts thus
1065 transferred or paid if, solely by reason of such transfer or
1066 disposition, the state is unable to recover the indebtedness of
1067 the person with respect to whose obligation the notice was
1068 given. If the delinquent taxpayer contests the intended levy in
1069 circuit court or under chapter 120, the notice under this
1070 section remains effective until that final resolution of the
1071 contest. Any financial institution receiving such notice
1072 maintains will maintain a right of setoff for any transaction
1073 involving a debit card occurring on or before the date of
1074 receipt of such notice.
1075 (3) During the last 30 days of the 60-day period set forth
1076 in subsection (1), the executive director or his or her designee
1077 may levy upon such credits, other personal property, or debts.
1078 The levy must be accomplished by delivery of a notice of levy by
1079 certified or registered mail, by personal service, or by
1080 electronic means, including, but not limited to, facsimile
1081 transmission or electronic data exchange. Upon receipt of the
1082 notice of levy, which the person possessing the credits, other
1083 personal property, or debts shall transfer them to the
1084 department or pay to the department the amount owed to the
1085 delinquent taxpayer.
1086 (6)(a) Levy may be made under subsection (3) upon credits,
1087 other personal property, or debt of any person with respect to
1088 any unpaid tax, penalties, and interest, additional daily
1089 accrued interest, costs, and fees only after the executive
1090 director or his or her designee has notified such person in
1091 writing of the intention to make such levy.
1092 (b) No less than 30 days before the day of the levy, the
1093 notice of intent to levy required under paragraph (a) must shall
1094 be given in person or sent by certified or registered mail to
1095 the person’s last known address.
1096 (c) The notice required in paragraph (a) must include a
1097 brief statement that sets forth in simple and nontechnical
1098 terms:
1099 1. The provisions of this section relating to levy and sale
1100 of property;
1101 2. The procedures applicable to the levy under this
1102 section;
1103 3. The administrative and judicial appeals available to the
1104 taxpayer with respect to such levy and sale, and the procedures
1105 relating to such appeals; and
1106 4. Any The alternatives, if any, available to taxpayers
1107 which could prevent levy on the property.
1108 Section 18. Section 220.42, Florida Statutes, is amended to
1109 read:
1110 220.42 Methods of accounting.—
1111 (1) For purposes of this code, a taxpayer’s method of
1112 accounting must shall be the same as such taxpayer’s method of
1113 accounting for federal income tax purposes, except as provided
1114 in subsection (3). If no method of accounting has been regularly
1115 used by a taxpayer, net income for purposes of this code must
1116 shall be computed by the such method that as in the opinion of
1117 the department determines most fairly reflects income.
1118 (2) If a taxpayer’s method of accounting is changed for
1119 federal income tax purposes, the taxpayer’s method of accounting
1120 for purposes of this code must shall be similarly changed.
1121 (3) Any taxpayer which has elected for federal income tax
1122 purposes to report any portion of its income on the completed
1123 contract method of accounting under Treasury Regulation 1.451
1124 3(b)(2) may elect to return the income so reported on the
1125 percentage of completion method of accounting under Treasury
1126 Regulation 1.451-3(b)(1), provided the taxpayer regularly
1127 maintains its books of account and reports to its shareholders
1128 on the percentage of completion method. The election provided by
1129 this subsection shall be allowed only if it is made, in such
1130 manner as the department may prescribe, not later than the due
1131 date, including any extensions thereof, for filing a return for
1132 the taxpayer’s first taxable year under this code in which a
1133 portion of its income is returned on the completed contract
1134 method of accounting for federal tax purposes. An election made
1135 pursuant to this subsection shall apply to all subsequent
1136 taxable years of the taxpayers unless the department consents in
1137 writing to its revocation.
1138 Section 19. Subsection (4) is added to section 220.735,
1139 Florida Statutes, to read:
1140 220.735 Production of witnesses and records.—
1141 (4) The failure of a taxpayer to provide documents
1142 available to, or required to be kept by, the taxpayer and
1143 requested by a subpoena issued under this section creates a
1144 rebuttable presumption that the resulting proposed final agency
1145 action by the department, as to the requested documents, is
1146 correct and that the requested documents not produced by the
1147 taxpayer would be adverse to the taxpayer’s position as to the
1148 proposed final agency action. If a taxpayer fails to provide
1149 documents requested by a subpoena issued under this section, the
1150 department may determine the amount of tax due according to its
1151 best judgment and may issue a notice of deficiency to the
1152 taxpayer, setting forth the amount of tax, interest, and any
1153 penalties proposed to be assessed. The department shall inform
1154 the taxpayer of the reason for the estimate and the information
1155 and methodology used to derive the estimate. The assessment
1156 shall be considered prima facie correct, and the taxpayer shall
1157 have the burden of showing any error in it.
1158 Section 20. Paragraph (e) of subsection (3) of section
1159 443.131, Florida Statutes, is amended to read:
1160 443.131 Contributions.—
1161 (3) VARIATION OF CONTRIBUTION RATES BASED ON BENEFIT
1162 EXPERIENCE.—
1163 (e) Assignment of variations from the standard rate.—
1164 1. As used in this paragraph, the terms “total benefit
1165 payments,” “benefits paid to an individual,” and “benefits
1166 charged to the employment record of an employer” mean the amount
1167 of benefits paid to individuals multiplied by:
1168 a. For benefits paid before prior to July 1, 2007, 1.
1169 b. For benefits paid during the period beginning on July 1,
1170 2007, and ending March 31, 2011, 0.90.
1171 c. For benefits paid after March 31, 2011, 1.
1172 d. For benefits paid during the period beginning April 1,
1173 2020, and ending December 31, 2020, 0.
1174 e. For benefits paid during the period beginning January 1,
1175 2021, and ending June 30, 2021, 1, except as otherwise adjusted
1176 in accordance with paragraph (f).
1177 2. For the calculation of contribution rates effective
1178 January 1, 2012, and thereafter:
1179 a. The tax collection service provider shall assign a
1180 variation from the standard rate of contributions for each
1181 calendar year to each eligible employer. In determining the
1182 contribution rate, varying from the standard rate to be assigned
1183 each employer, adjustment factors computed under sub-sub
1184 subparagraphs (I)-(IV) are added to the benefit ratio. This
1185 addition shall be accomplished in two steps by adding a variable
1186 adjustment factor and a final adjustment factor. The sum of
1187 these adjustment factors computed under sub-sub-subparagraphs
1188 (I)-(IV) shall first be algebraically summed. The sum of these
1189 adjustment factors shall next be divided by a gross benefit
1190 ratio determined as follows: Total benefit payments for the 3
1191 year period described in subparagraph (b)3. are charged to
1192 employers eligible for a variation from the standard rate, minus
1193 excess payments for the same period, divided by taxable payroll
1194 entering into the computation of individual benefit ratios for
1195 the calendar year for which the contribution rate is being
1196 computed. The ratio of the sum of the adjustment factors
1197 computed under sub-sub-subparagraphs (I)-(IV) to the gross
1198 benefit ratio is multiplied by each individual benefit ratio
1199 that is less than the maximum contribution rate to obtain
1200 variable adjustment factors; except that if the sum of an
1201 employer’s individual benefit ratio and variable adjustment
1202 factor exceeds the maximum contribution rate, the variable
1203 adjustment factor is reduced in order for the sum to equal the
1204 maximum contribution rate. The variable adjustment factor for
1205 each of these employers is multiplied by his or her taxable
1206 payroll entering into the computation of his or her benefit
1207 ratio. The sum of these products is divided by the taxable
1208 payroll of the employers who entered into the computation of
1209 their benefit ratios. The resulting ratio is subtracted from the
1210 sum of the adjustment factors computed under sub-sub
1211 subparagraphs (I)-(IV) to obtain the final adjustment factor.
1212 The variable adjustment factors and the final adjustment factor
1213 must be computed to five decimal places and rounded to the
1214 fourth decimal place. This final adjustment factor is added to
1215 the variable adjustment factor and benefit ratio of each
1216 employer to obtain each employer’s contribution rate. An
1217 employer’s contribution rate may not, however, be rounded to
1218 less than 0.1 percent. Regardless of whether subparagraph 5. is
1219 repealed as provided in subparagraph 6., in determining the
1220 contribution rate for rates effective January 1, 2021, through
1221 December 31, 2025, varying from the standard rate that would
1222 otherwise to be assigned, the computation shall exclude any
1223 benefit that is excluded by the multipliers under subparagraph
1224 (b)2. and subparagraph 1. and The computation of the
1225 contribution rate, varying from the standard rate to be
1226 assigned, shall also exclude any benefit paid as a result of a
1227 governmental order related to COVID-19 to close or reduce
1228 capacity of a business before the date of the repeal. In
1229 addition, the contribution rate for the 2021 and 2022 calendar
1230 years shall be calculated without the application of the
1231 positive adjustment factor in sub-sub-subparagraph (III).
1232 (I) An adjustment factor for noncharge benefits is computed
1233 to the fifth decimal place and rounded to the fourth decimal
1234 place by dividing the amount of noncharge benefits during the 3
1235 year period described in subparagraph (b)3. by the taxable
1236 payroll of employers eligible for a variation from the standard
1237 rate who have a benefit ratio for the current year which is less
1238 than the maximum contribution rate. For purposes of computing
1239 this adjustment factor, the taxable payroll of these employers
1240 is the taxable payrolls for the 3 years ending June 30 of the
1241 current calendar year as reported to the tax collection service
1242 provider by September 30 of the same calendar year. As used in
1243 this sub-sub-subparagraph, the term “noncharge benefits” means
1244 benefits paid to an individual, as adjusted pursuant to
1245 subparagraph (b)2. and subparagraph 1., from the Unemployment
1246 Compensation Trust Fund which were not charged to the employment
1247 record of any employer, but excluding any benefit paid as a
1248 result of a governmental order related to COVID-19 to close or
1249 reduce capacity of a business.
1250 (II) An adjustment factor for excess payments is computed
1251 to the fifth decimal place, and rounded to the fourth decimal
1252 place by dividing the total excess payments during the 3-year
1253 period described in subparagraph (b)3. by the taxable payroll of
1254 employers eligible for a variation from the standard rate who
1255 have a benefit ratio for the current year which is less than the
1256 maximum contribution rate. For purposes of computing this
1257 adjustment factor, the taxable payroll of these employers is the
1258 same figure used to compute the adjustment factor for noncharge
1259 benefits under sub-sub-subparagraph (I). As used in this sub
1260 subparagraph, the term “excess payments” means the amount of
1261 benefits charged to the employment record of an employer, as
1262 adjusted pursuant to subparagraph (b)2. and subparagraph 1.,
1263 during the 3-year period described in subparagraph (b)3., but
1264 excluding any benefit paid as a result of a governmental order
1265 related to COVID-19 to close or reduce capacity of a business,
1266 less the product of the maximum contribution rate and the
1267 employer’s taxable payroll for the 3 years ending June 30 of the
1268 current calendar year as reported to the tax collection service
1269 provider by September 30 of the same calendar year. As used in
1270 this sub-sub-subparagraph, the term “total excess payments”
1271 means the sum of the individual employer excess payments for
1272 those employers that were eligible for assignment of a
1273 contribution rate different from the standard rate.
1274 (III) With respect to computing a positive adjustment
1275 factor:
1276 (A) Beginning January 1, 2012, if the balance of the
1277 Unemployment Compensation Trust Fund on September 30 of the
1278 calendar year immediately preceding the calendar year for which
1279 the contribution rate is being computed is less than 4 percent
1280 of the taxable payrolls for the year ending June 30 as reported
1281 to the tax collection service provider by September 30 of that
1282 calendar year, a positive adjustment factor shall be computed.
1283 The positive adjustment factor is computed annually to the fifth
1284 decimal place and rounded to the fourth decimal place by
1285 dividing the sum of the total taxable payrolls for the year
1286 ending June 30 of the current calendar year as reported to the
1287 tax collection service provider by September 30 of that calendar
1288 year into a sum equal to one-fifth of the difference between the
1289 balance of the fund as of September 30 of that calendar year and
1290 the sum of 5 percent of the total taxable payrolls for that
1291 year. The positive adjustment factor remains in effect for
1292 subsequent years until the balance of the Unemployment
1293 Compensation Trust Fund as of September 30 of the year
1294 immediately preceding the effective date of the contribution
1295 rate equals or exceeds 4 percent of the taxable payrolls for the
1296 year ending June 30 of the current calendar year as reported to
1297 the tax collection service provider by September 30 of that
1298 calendar year.
1299 (B) Beginning January 1, 2018, and for each year
1300 thereafter, the positive adjustment shall be computed by
1301 dividing the sum of the total taxable payrolls for the year
1302 ending June 30 of the current calendar year as reported to the
1303 tax collection service provider by September 30 of that calendar
1304 year into a sum equal to one-fourth of the difference between
1305 the balance of the fund as of September 30 of that calendar year
1306 and the sum of 5 percent of the total taxable payrolls for that
1307 year. The positive adjustment factor remains in effect for
1308 subsequent years until the balance of the Unemployment
1309 Compensation Trust Fund as of September 30 of the year
1310 immediately preceding the effective date of the contribution
1311 rate equals or exceeds 4 percent of the taxable payrolls for the
1312 year ending June 30 of the current calendar year as reported to
1313 the tax collection service provider by September 30 of that
1314 calendar year.
1315 (IV) If, beginning January 1, 2015, and each year
1316 thereafter, the balance of the Unemployment Compensation Trust
1317 Fund as of September 30 of the year immediately preceding the
1318 calendar year for which the contribution rate is being computed
1319 exceeds 5 percent of the taxable payrolls for the year ending
1320 June 30 of the current calendar year as reported to the tax
1321 collection service provider by September 30 of that calendar
1322 year, a negative adjustment factor must be computed. The
1323 negative adjustment factor shall be computed annually beginning
1324 on January 1, 2015, and each year thereafter, to the fifth
1325 decimal place and rounded to the fourth decimal place by
1326 dividing the sum of the total taxable payrolls for the year
1327 ending June 30 of the current calendar year as reported to the
1328 tax collection service provider by September 30 of the calendar
1329 year into a sum equal to one-fourth of the difference between
1330 the balance of the fund as of September 30 of the current
1331 calendar year and 5 percent of the total taxable payrolls of
1332 that year. The negative adjustment factor remains in effect for
1333 subsequent years until the balance of the Unemployment
1334 Compensation Trust Fund as of September 30 of the year
1335 immediately preceding the effective date of the contribution
1336 rate is less than 5 percent, but more than 4 percent of the
1337 taxable payrolls for the year ending June 30 of the current
1338 calendar year as reported to the tax collection service provider
1339 by September 30 of that calendar year. The negative adjustment
1340 authorized by this section is suspended in any calendar year in
1341 which repayment of the principal amount of an advance received
1342 from the federal Unemployment Compensation Trust Fund under 42
1343 U.S.C. s. 1321 is due to the Federal Government.
1344 (V) The maximum contribution rate that may be assigned to
1345 an employer is 5.4 percent, except employers participating in an
1346 approved short-time compensation plan may be assigned a maximum
1347 contribution rate that is 1 percent greater than the maximum
1348 contribution rate for other employers in any calendar year in
1349 which short-time compensation benefits are charged to the
1350 employer’s employment record.
1351 (VI) As used in this subsection, “taxable payroll” shall be
1352 determined by excluding any part of the remuneration paid to an
1353 individual by an employer for employment during a calendar year
1354 in excess of the first $7,000. Beginning January 1, 2012,
1355 “taxable payroll” shall be determined by excluding any part of
1356 the remuneration paid to an individual by an employer for
1357 employment during a calendar year as described in s.
1358 443.1217(2). For the purposes of the employer rate calculation
1359 that will take effect in January 1, 2012, and in January 1,
1360 2013, the tax collection service provider shall use the data
1361 available for taxable payroll from 2009 based on excluding any
1362 part of the remuneration paid to an individual by an employer
1363 for employment during a calendar year in excess of the first
1364 $7,000, and from 2010 and 2011, the data available for taxable
1365 payroll based on excluding any part of the remuneration paid to
1366 an individual by an employer for employment during a calendar
1367 year in excess of the first $8,500.
1368 b. If the transfer of an employer’s employment record to an
1369 employing unit under paragraph (g) which, before the transfer,
1370 was an employer, the tax collection service provider shall
1371 recompute a benefit ratio for the successor employer based on
1372 the combined employment records and reassign an appropriate
1373 contribution rate to the successor employer effective on the
1374 first day of the calendar quarter immediately after the
1375 effective date of the transfer.
1376 3. The tax collection service provider shall reissue rates
1377 for the 2021 calendar year. However, an employer shall continue
1378 to timely file its employer’s quarterly reports and pay the
1379 contributions due in a timely manner in accordance with the
1380 rules of the Department of Economic Opportunity. The Department
1381 of Revenue shall post the revised rates on its website to enable
1382 employers to securely review the revised rates. For
1383 contributions for the first quarter of the 2021 calendar year,
1384 if any employer remits to the tax collection service provider an
1385 amount in excess of the amount that would be due as calculated
1386 pursuant to this paragraph, the tax collection service provider
1387 shall refund the excess amount from the amount erroneously
1388 collected. Notwithstanding s. 443.141(6), refunds issued through
1389 August 31, 2021, for first quarter 2021 contributions must be
1390 paid from the General Revenue Fund.
1391 4. The tax collection service provider shall calculate and
1392 assign contribution rates effective January 1, 2022, through
1393 December 31, 2022, excluding any benefit charge that is excluded
1394 by the multipliers under subparagraph (b)2. and subparagraph 1.;
1395 without the application of the positive adjustment factor in
1396 sub-sub-subparagraph 2.a.(III); and without the inclusion of any
1397 benefit charge directly related to COVID-19 as a result of a
1398 governmental order to close or reduce capacity of a business, as
1399 determined by the Department of Economic Opportunity, for each
1400 employer who is eligible for a variation from the standard rate
1401 pursuant to paragraph (d). The Department of Economic
1402 Opportunity shall provide the tax collection service provider
1403 with all necessary benefit charge information by August 1, 2021,
1404 including specific information for adjustments related to COVID
1405 19 charges resulting from a governmental order to close or
1406 reduce capacity of a business, to enable the tax collection
1407 service provider to calculate and issue tax rates effective
1408 January 1, 2022. The tax collection service provider shall
1409 calculate and post rates for the 2022 calendar year by March 1,
1410 2022.
1411 5. Subject to subparagraph 6., the tax collection service
1412 provider shall calculate and assign contribution rates effective
1413 January 1, 2023, through December 31, 2025, excluding any
1414 benefit charge that is excluded by the multipliers under
1415 subparagraph (b)2. and subparagraph 1.; without the application
1416 of the positive adjustment factor in sub-sub-subparagraph
1417 2.a.(III); and without the inclusion of any benefit charge
1418 directly related to COVID-19 as a result of a governmental order
1419 to close or reduce capacity of a business, as determined by the
1420 Department of Economic Opportunity, for each employer who is
1421 eligible for a variation from the standard rate pursuant to
1422 paragraph (d). The Department of Economic Opportunity shall
1423 provide the tax collection service provider with all necessary
1424 benefit charge information by August 1 of each year, including
1425 specific information for adjustments related to COVID-19 charges
1426 resulting from a governmental order to close or reduce capacity
1427 of a business, to enable the tax collection service provider to
1428 calculate and issue tax rates effective the following January.
1429 6. If the balance of the Unemployment Compensation Trust
1430 Fund on June 30 of any year exceeds $4,071,519,600, subparagraph
1431 5. is repealed for rates effective the following years. The
1432 Office of Economic and Demographic Research shall advise the tax
1433 collection service provider of the balance of the trust fund on
1434 June 30 by August 1 of that year. After the repeal of
1435 subparagraph 5. and notwithstanding the dates specified in that
1436 subparagraph, the tax collection service provider shall
1437 calculate and assign contribution rates for each subsequent
1438 calendar year as otherwise provided in this section.
1439 Section 21. Paragraph (a) of subsection (9) of section
1440 443.171, Florida Statutes, is amended to read:
1441 443.171 Department of Economic Opportunity and commission;
1442 powers and duties; records and reports; proceedings; state
1443 federal cooperation.—
1444 (9) STATE-FEDERAL COOPERATION.—
1445 (a)1. In the administration of this chapter, the Department
1446 of Economic Opportunity and its tax collection service provider
1447 shall cooperate with the United States Department of Labor to
1448 the fullest extent consistent with this chapter and shall take
1449 those actions, through the adoption of appropriate rules,
1450 administrative methods, and standards, necessary to secure for
1451 this state all advantages available under the provisions of
1452 federal law relating to reemployment assistance.
1453 2. In the administration of the provisions in s. 443.1115,
1454 which are enacted to conform with the Federal-State Extended
1455 Unemployment Compensation Act of 1970, the department shall take
1456 those actions necessary to ensure that those provisions are
1457 interpreted and applied to meet the requirements of the federal
1458 act as interpreted by the United States Department of Labor and
1459 to secure for this state the full reimbursement of the federal
1460 share of extended benefits paid under this chapter which is
1461 reimbursable under the federal act.
1462 3. The department and its tax collection service provider
1463 shall comply with the regulations of the United States
1464 Department of Labor relating to the receipt or expenditure by
1465 this state of funds granted under federal law; shall submit the
1466 reports in the form and containing the information the United
1467 States Department of Labor requires; and shall comply with
1468 directions of the United States Department of Labor necessary to
1469 assure the correctness and verification of these reports.
1470 4. The department and its tax collection service provider
1471 shall comply with the requirements of the federal Treasury
1472 Offset Program as it pertains to the recovery of unemployment
1473 compensation debts as required by the United States Department
1474 of Labor pursuant to 26 U.S.C. s. 6402. The department or the
1475 tax collection service provider may adopt rules to implement
1476 this subparagraph.
1477 Section 22. This act shall take effect July 1, 2022.