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       Florida Senate - 2010                              CS for SB 220
       By the Committee on Finance and Tax; and Senator Fasano
       593-04945-10                                           2010220c1
    1                        A bill to be entitled                      
    2         An act relating to the tax on sales, use, and other
    3         transactions; amending s. 212.05, F.S.; deleting a
    4         requirement that a specified penalty is mandatory and
    5         may not be waived by the Department of Revenue;
    6         deleting authorization to return certain aircraft to
    7         the state for repairs without liability for taxes and
    8         penalties under certain circumstances; amending s.
    9         212.08, F.S.; exempting from the use tax aircraft that
   10         are owned by nonresidents and that enter and remain in
   11         the state for certain purposes under certain
   12         circumstances; providing an effective date.
   14  Be It Enacted by the Legislature of the State of Florida:
   16         Section 1. Paragraph (a) of subsection (1) of section
   17  212.05, Florida Statutes, is amended to read:
   18         212.05 Sales, storage, use tax.—It is hereby declared to be
   19  the legislative intent that every person is exercising a taxable
   20  privilege who engages in the business of selling tangible
   21  personal property at retail in this state, including the
   22  business of making mail order sales, or who rents or furnishes
   23  any of the things or services taxable under this chapter, or who
   24  stores for use or consumption in this state any item or article
   25  of tangible personal property as defined herein and who leases
   26  or rents such property within the state.
   27         (1) For the exercise of such privilege, a tax is levied on
   28  each taxable transaction or incident, which tax is due and
   29  payable as follows:
   30         (a)1.a. At the rate of 6 percent of the sales price of each
   31  item or article of tangible personal property when sold at
   32  retail in this state, computed on each taxable sale for the
   33  purpose of remitting the amount of tax due the state, and
   34  including each and every retail sale.
   35         b. Each occasional or isolated sale of an aircraft, boat,
   36  mobile home, or motor vehicle of a class or type which is
   37  required to be registered, licensed, titled, or documented in
   38  this state or by the United States Government shall be subject
   39  to tax at the rate provided in this paragraph. The department
   40  shall by rule adopt any nationally recognized publication for
   41  valuation of used motor vehicles as the reference price list for
   42  any used motor vehicle which is required to be licensed pursuant
   43  to s. 320.08(1), (2), (3)(a), (b), (c), or (e), or (9). If any
   44  party to an occasional or isolated sale of such a vehicle
   45  reports to the tax collector a sales price which is less than 80
   46  percent of the average loan price for the specified model and
   47  year of such vehicle as listed in the most recent reference
   48  price list, the tax levied under this paragraph shall be
   49  computed by the department on such average loan price unless the
   50  parties to the sale have provided to the tax collector an
   51  affidavit signed by each party, or other substantial proof,
   52  stating the actual sales price. Any party to such sale who
   53  reports a sales price less than the actual sales price is guilty
   54  of a misdemeanor of the first degree, punishable as provided in
   55  s. 775.082 or s. 775.083. The department shall collect or
   56  attempt to collect from such party any delinquent sales taxes.
   57  In addition, such party shall pay any tax due and any penalty
   58  and interest assessed plus a penalty equal to twice the amount
   59  of the additional tax owed. Notwithstanding any other provision
   60  of law, the Department of Revenue may waive or compromise any
   61  penalty imposed pursuant to this subparagraph.
   62         2. This paragraph does not apply to the sale of a boat or
   63  aircraft by or through a registered dealer under this chapter to
   64  a purchaser who, at the time of taking delivery, is a
   65  nonresident of this state, does not make his or her permanent
   66  place of abode in this state, and is not engaged in carrying on
   67  in this state any employment, trade, business, or profession in
   68  which the boat or aircraft will be used in this state, or is a
   69  corporation none of the officers or directors of which is a
   70  resident of, or makes his or her permanent place of abode in,
   71  this state, or is a noncorporate entity that has no individual
   72  vested with authority to participate in the management,
   73  direction, or control of the entity’s affairs who is a resident
   74  of, or makes his or her permanent abode in, this state. For
   75  purposes of this exemption, either a registered dealer acting on
   76  his or her own behalf as seller, a registered dealer acting as
   77  broker on behalf of a seller, or a registered dealer acting as
   78  broker on behalf of the purchaser may be deemed to be the
   79  selling dealer. This exemption shall not be allowed unless:
   80         a. The purchaser removes a qualifying boat, as described in
   81  sub-subparagraph f., from the state within 90 days after the
   82  date of purchase or extension, or the purchaser removes a
   83  nonqualifying boat or an aircraft from this state within 10 days
   84  after the date of purchase or, when the boat or aircraft is
   85  repaired or altered, within 20 days after completion of the
   86  repairs or alterations;
   87         b. The purchaser, within 30 days from the date of
   88  departure, shall provide the department with written proof that
   89  the purchaser licensed, registered, titled, or documented the
   90  boat or aircraft outside the state. If such written proof is
   91  unavailable, within 30 days the purchaser shall provide proof
   92  that the purchaser applied for such license, title,
   93  registration, or documentation. The purchaser shall forward to
   94  the department proof of title, license, registration, or
   95  documentation upon receipt;
   96         c. The purchaser, within 10 days of removing the boat or
   97  aircraft from Florida, shall furnish the department with proof
   98  of removal in the form of receipts for fuel, dockage, slippage,
   99  tie-down, or hangaring from outside of Florida. The information
  100  so provided must clearly and specifically identify the boat or
  101  aircraft;
  102         d. The selling dealer, within 5 days of the date of sale,
  103  shall provide to the department a copy of the sales invoice,
  104  closing statement, bills of sale, and the original affidavit
  105  signed by the purchaser attesting that he or she has read the
  106  provisions of this section;
  107         e. The seller makes a copy of the affidavit a part of his
  108  or her record for as long as required by s. 213.35; and
  109         f. Unless the nonresident purchaser of a boat of 5 net tons
  110  of admeasurement or larger intends to remove the boat from this
  111  state within 10 days after the date of purchase or when the boat
  112  is repaired or altered, within 20 days after completion of the
  113  repairs or alterations, the nonresident purchaser shall apply to
  114  the selling dealer for a decal which authorizes 90 days after
  115  the date of purchase for removal of the boat. The nonresident
  116  purchaser of a qualifying boat may apply to the selling dealer
  117  within 60 days after the date of purchase for an extension decal
  118  that authorizes the boat to remain in this state for an
  119  additional 90 days, but not more than a total of 180 days,
  120  before the nonresident purchaser is required to pay the tax
  121  imposed by this chapter. The department is authorized to issue
  122  decals in advance to dealers. The number of decals issued in
  123  advance to a dealer shall be consistent with the volume of the
  124  dealer’s past sales of boats which qualify under this sub
  125  subparagraph. The selling dealer or his or her agent shall mark
  126  and affix the decals to qualifying boats in the manner
  127  prescribed by the department, prior to delivery of the boat.
  128         (I) The department is hereby authorized to charge dealers a
  129  fee sufficient to recover the costs of decals issued, except the
  130  extension decal shall cost $425.
  131         (II) The proceeds from the sale of decals will be deposited
  132  into the administrative trust fund.
  133         (III) Decals shall display information to identify the boat
  134  as a qualifying boat under this sub-subparagraph, including, but
  135  not limited to, the decal’s date of expiration.
  136         (IV) The department is authorized to require dealers who
  137  purchase decals to file reports with the department and may
  138  prescribe all necessary records by rule. All such records are
  139  subject to inspection by the department.
  140         (V) Any dealer or his or her agent who issues a decal
  141  falsely, fails to affix a decal, mismarks the expiration date of
  142  a decal, or fails to properly account for decals will be
  143  considered prima facie to have committed a fraudulent act to
  144  evade the tax and will be liable for payment of the tax plus a
  145  mandatory penalty of 200 percent of the tax, and shall be liable
  146  for fine and punishment as provided by law for a conviction of a
  147  misdemeanor of the first degree, as provided in s. 775.082 or s.
  148  775.083.
  149         (VI) Any nonresident purchaser of a boat who removes a
  150  decal prior to permanently removing the boat from the state, or
  151  defaces, changes, modifies, or alters a decal in a manner
  152  affecting its expiration date prior to its expiration, or who
  153  causes or allows the same to be done by another, will be
  154  considered prima facie to have committed a fraudulent act to
  155  evade the tax and will be liable for payment of the tax plus a
  156  mandatory penalty of 200 percent of the tax, and shall be liable
  157  for fine and punishment as provided by law for a conviction of a
  158  misdemeanor of the first degree, as provided in s. 775.082 or s.
  159  775.083.
  160         (VII) The department is authorized to adopt rules necessary
  161  to administer and enforce this subparagraph and to publish the
  162  necessary forms and instructions.
  163         (VIII) The department is hereby authorized to adopt
  164  emergency rules pursuant to s. 120.54(4) to administer and
  165  enforce the provisions of this subparagraph.
  167  If the purchaser fails to remove the qualifying boat from this
  168  state within the maximum 180 days after purchase or a
  169  nonqualifying boat or an aircraft from this state within 10 days
  170  after purchase or, when the boat or aircraft is repaired or
  171  altered, within 20 days after completion of such repairs or
  172  alterations, or permits the boat or aircraft to return to this
  173  state within 6 months from the date of departure, except as
  174  provided in s. 212.08(7)(ggg), or if the purchaser fails to
  175  furnish the department with any of the documentation required by
  176  this subparagraph within the prescribed time period, the
  177  purchaser shall be liable for use tax on the cost price of the
  178  boat or aircraft and, in addition thereto, payment of a penalty
  179  to the Department of Revenue equal to the tax payable. This
  180  penalty shall be in lieu of the penalty imposed by s. 212.12(2)
  181  and is mandatory and shall not be waived by the department. The
  182  maximum 180-day period following the sale of a qualifying boat
  183  tax-exempt to a nonresident may not be tolled for any reason.
  184  Notwithstanding other provisions of this paragraph to the
  185  contrary, an aircraft purchased in this state under the
  186  provisions of this paragraph may be returned to this state for
  187  repairs within 6 months after the date of its departure without
  188  being in violation of the law and without incurring liability
  189  for the payment of tax or penalty on the purchase price of the
  190  aircraft if the aircraft is removed from this state within 20
  191  days after the completion of the repairs and if such removal can
  192  be demonstrated by invoices for fuel, tie-down, hangar charges
  193  issued by out-of-state vendors or suppliers, or similar
  194  documentation.
  195         Section 2. Paragraph (ggg) is added to subsection (7) of
  196  section 212.08, Florida Statutes, to read:
  197         212.08 Sales, rental, use, consumption, distribution, and
  198  storage tax; specified exemptions.—The sale at retail, the
  199  rental, the use, the consumption, the distribution, and the
  200  storage to be used or consumed in this state of the following
  201  are hereby specifically exempt from the tax imposed by this
  202  chapter.
  203         (7) MISCELLANEOUS EXEMPTIONS.—Exemptions provided to any
  204  entity by this chapter do not inure to any transaction that is
  205  otherwise taxable under this chapter when payment is made by a
  206  representative or employee of the entity by any means,
  207  including, but not limited to, cash, check, or credit card, even
  208  when that representative or employee is subsequently reimbursed
  209  by the entity. In addition, exemptions provided to any entity by
  210  this subsection do not inure to any transaction that is
  211  otherwise taxable under this chapter unless the entity has
  212  obtained a sales tax exemption certificate from the department
  213  or the entity obtains or provides other documentation as
  214  required by the department. Eligible purchases or leases made
  215  with such a certificate must be in strict compliance with this
  216  subsection and departmental rules, and any person who makes an
  217  exempt purchase with a certificate that is not in strict
  218  compliance with this subsection and the rules is liable for and
  219  shall pay the tax. The department may adopt rules to administer
  220  this subsection.
  221         (ggg)Aircraft temporarily in the state.
  222         1.An aircraft owned by a nonresident is exempt from the
  223  use tax imposed under this chapter if the aircraft enters and
  224  remains in this state for less than a total of 21 days during
  225  the 6-month period after the date of purchase. The temporary use
  226  of the aircraft and subsequent removal from this state may be
  227  proven by invoices for fuel, tie-down, or hangar charges issued
  228  by out-of-state vendors or suppliers or similar documentation
  229  that clearly and specifically identifies the aircraft. The
  230  exemption created by this subparagraph is in addition to the
  231  exemptions provided in subparagraph 2. and s. 212.05(1)(a).
  232         2.An aircraft owned by a nonresident is exempt from the
  233  use tax imposed under this chapter if the aircraft enters or
  234  remains in this state exclusively for the purpose of flight
  235  training, repairs, alterations, refitting, or modification. Such
  236  purposes must be supported by written documentation issued by
  237  in-state vendors or suppliers which clearly and specifically
  238  identifies the aircraft. The exemption created by this
  239  subparagraph is in addition to the exemptions provided in
  240  subparagraph 1. and s. 212.05(1)(a).
  241         Section 3. This act shall take effect July 1, 2010.

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