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Senate Bill 2218

Senate Bill sb2218

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2218

    By Senator Margolis





    35-1473-04

  1                      A bill to be entitled

  2         An act relating to tax administration; amending

  3         s. 198.32, F.S.; allowing the personal

  4         representative of an estate that is not subject

  5         to tax under ch. 198, F.S., to execute an

  6         affidavit attesting that the estate is not

  7         taxable; amending s. 199.135, F.S.; providing

  8         for taxation of sales of timeshare interests in

  9         timeshare plans; amending s. 201.02, F.S.;

10         providing special provisions for the tax on

11         deeds and other instruments relating to real

12         property or interests in real property as

13         applied to the sales of timeshare interests in

14         timeshare plans; amending s. 201.08, F.S.;

15         providing special provisions for the tax on

16         notes as applied to the sales of timeshare

17         interests in timeshare plans; amending s.

18         202.11, F.S.; expanding the definition of the

19         term "service address"; amending s. 212.12,

20         F.S.; providing that a person who willfully

21         attempts in any manner to evade or defeat a tax

22         or fee imposed under ch. 212, F.S., commits a

23         felony of the third degree; providing an

24         additional penalty; amending s. 213.21, F.S.;

25         providing that taxes imposed under ss. 124.0104

26         and 125.0108, F.S., qualify for the automatic

27         penalty compromise or settlement provided for

28         in that section; providing an exception;

29         providing for retroactivity; creating s.

30         213.758, F.S.; providing the Department of

31         Revenue direction for the retention and

                                  1

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1         destruction of unclaimed evidence; providing

 2         for rulemaking; providing effective dates.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Subsection (2) of section 198.32, Florida

 7  Statutes, is amended to read:

 8         198.32  Prima facie liability for tax.--

 9         (2)  Whenever an estate is not subject to tax under

10  this chapter and is not required to file a return, the

11  personal representative may execute an affidavit attesting

12  that the estate is not taxable. The form of the affidavit

13  shall be prescribed by the department, and shall include, but

14  not be limited to, statements regarding the decedent's

15  domicile and whether a federal estate tax return will be

16  filed, and acknowledgment of the personal representative's

17  personal liability under s. 198.23. This affidavit shall be

18  subject to record and admissible in evidence to show

19  nonliability for tax. This subsection applies to all estates,

20  regardless of the date of death of the decedent.

21         Section 2.  Subsection (5) is added to section 199.135,

22  Florida Statutes, to read:

23         199.135  Due date and payment of nonrecurring tax.--The

24  nonrecurring tax imposed on notes, bonds, and other

25  obligations for payment of money secured by a mortgage, deed

26  of trust, or other lien evidenced by a written instrument

27  presented for recordation shall be due and payable when the

28  instrument is presented for recordation.  If there is no

29  written instrument or if it is not so presented within 30 days

30  following creation of the obligation, then the tax shall be

31  

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  due and payable within 30 days following creation of the

 2  obligation.

 3         (5)(a)  In recognition of the special escrow

 4  requirements that apply to sales of timeshare interests in

 5  timeshare plans pursuant to s. 721.08, taxes on notes or other

 6  obligations and mortgages or other liens executed in

 7  conjunction with the sale by a developer of a timeshare

 8  interest in a timeshare plan are due on the earlier of the

 9  date on which:

10         1.  The mortgage or other lien is recorded; or

11         2.  All of the conditions precedent to the release of

12  the purchaser's escrowed funds or other property pursuant to

13  s. 721.08(2)(c) have been complied with, regardless of whether

14  the developer has posted an alternative assurance. Taxes due

15  under this subparagraph shall be paid on or before the 20th

16  day of the month following the month in which they become due.

17         (b)1.  If tax has been paid to the department by the

18  taxpayer under subparagraph (a)2., and the mortgage or other

19  lien with respect to which the tax is remitted is subsequently

20  recorded, a notation reflecting the prior payment of the tax

21  must be made upon the mortgage.

22         2.  Notwithstanding paragraph (a), if moneys are

23  designated on a closing statement as taxes collected from the

24  purchaser, but the mortgage or other lien with respect to

25  which the tax was collected is never recorded, the tax moneys

26  shall be paid to the department on or before the 20th day of

27  the month following the month in which the funds are available

28  for release from escrow, unless the moneys are refunded to the

29  purchaser before that date.

30         3.  The department may adopt rules to implement the

31  method for reporting taxes due under this subsection.

                                  3

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1         Section 3.  Subsection (10) is added to section 201.02,

 2  Florida Statutes, to read:

 3         201.02  Tax on deeds and other instruments relating to

 4  real property or interests in real property.--

 5         (10)(a)  In recognition of the special escrow

 6  requirements that apply to sales of timeshare interests in

 7  timeshare plans pursuant to s. 721.08, taxes on deeds or other

 8  instruments conveying interest in Florida real property which

 9  are executed in conjunction with the sale by a developer of a

10  timeshare interest in a timeshare plan shall be due on the

11  earlier of the date on which:

12         1.  The deed or other instrument conveying interest in

13  Florida real property is recorded; or

14         2.  All of the conditions precedent to the release of

15  the purchaser's escrowed funds or other property pursuant to

16  the requirements of s. 721.08(2)(c) have been complied with,

17  regardless of whether the developer has posted an alternative

18  assurance. Taxes due under this subparagraph shall be paid on

19  or before the 20th day of the month following the month in

20  which they become due.

21         (b)1.  If tax has been paid to the department pursuant

22  to subparagraph (a)2., and the deed or other instrument

23  conveying interest in Florida real property with respect to

24  which the tax was remitted is subsequently recorded, a

25  notation reflecting the prior payment of the tax must be made

26  upon the deed or other instrument conveying interest in

27  Florida real property moneys.

28         2.  Notwithstanding paragraph (a), if moneys are

29  designated on a closing statement as taxes collected from the

30  purchaser, but a default or cancellation occurs and no deed or

31  other instrument conveying interest in Florida real property

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  is ever recorded or delivered to the purchaser, the tax moneys

 2  shall be paid to the department on or before the 20th day of

 3  the month following the month in which such funds are

 4  available for release from escrow pursuant to s. 721.08(2)(a)

 5  or s. 721.08(b), unless such moneys are refunded to the

 6  purchaser before that date.

 7         3.  The department may adopt rules to implement the

 8  method for reporting taxes due pursuant to this subsection.

 9         Section 4.  Subsection (8) is added to section 201.08,

10  Florida Statutes, to read:

11         201.08  Tax on promissory or nonnegotiable notes,

12  written obligations to pay money, or assignments of wages or

13  other compensation; exception.--

14         (8)(a)  In recognition of the special escrow

15  requirements that apply to sales of timeshare interests in

16  timeshare plans pursuant to s. 721.08, taxes on notes or other

17  written obligations and mortgages or other evidences of

18  indebtedness executed in conjunction with the sale by a

19  developer of a timeshare interest in a timeshare plan shall be

20  due on the earlier of the date on which:

21         1.  The mortgage or other evidence of indebtedness is

22  recorded; or

23         2.  All of the conditions precedent to the release of

24  the purchaser's escrowed funds or other property pursuant to

25  the requirements of s. 721.08(2)(c) have been complied with,

26  regardless of whether the developer has posted an alternative

27  assurance. Taxes due pursuant to this subparagraph shall be

28  paid on or before the 20th day of the month following the

29  month in which they become due.

30         (b)1.  If tax has been paid to the department pursuant

31  to subparagraph (a)2., and the mortgage or other evidence of

                                  5

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  indebtedness with respect to which the tax was remitted is

 2  subsequently recorded, a notation reflecting the prior payment

 3  of the tax must be made upon the mortgage.

 4         2.  Notwithstanding paragraph (a), if moneys are

 5  designated on a closing statement as taxes collected from the

 6  purchaser, but the mortgage or other evidence of indebtedness

 7  with respect to which the tax is collected is never recorded,

 8  the tax moneys shall be paid to the department on or before

 9  the 20th day of the month following the month in which the

10  funds are available for release from escrow, unless the moneys

11  are refunded to the purchaser before that date.

12         3.  The department may adopt rules to implement the

13  method for reporting taxes due pursuant to this subsection.

14         Section 5.  Effective July 1, 2004, paragraph (a) of

15  subsection (15) of section 202.11, Florida Statutes, is

16  amended to read:

17         202.11  Definitions.--As used in this chapter:

18         (15)  "Service address" means:

19         (a)  Except as otherwise provided in this section:,

20         1.  The location of the communications equipment from

21  which communications services originate or at which

22  communications services are received by the customer.

23         2.  In the case of a communications service paid

24  through a credit or payment mechanism that does not relate to

25  a service address, such as a bank, travel, debit, or credit

26  card, and in the case of third-number and calling-card calls,

27  the service address is the address of the central office, as

28  determined by the area code and the first three digits of the

29  seven-digit originating telephone number.

30         3.  If the location of the equipment applicant

31  described in subparagraph 1. is not known and if subparagraph

                                  6

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  2. does not apply, the service address is the location of the

 2  customer's primary use of the communications service. For

 3  purposes of this subparagraph, the location of the customer's

 4  primary use of a communications service is the residential

 5  street address or the business street address of the customer.

 6         Section 6.  Effective July 1, 2004, subsection (2) of

 7  section 212.12, Florida Statutes, is amended to read:

 8         212.12  Dealer's credit for collecting tax; penalties

 9  for noncompliance; powers of Department of Revenue in dealing

10  with delinquents; brackets applicable to taxable transactions;

11  records required.--

12         (2)(a)  When any person required hereunder to make any

13  return or to pay any tax or fee imposed by this chapter either

14  fails to timely file such return or fails to pay the tax or

15  fee shown due on the return within the time required

16  hereunder, in addition to all other penalties provided herein

17  and by the laws of this state in respect to such taxes or

18  fees, a specific penalty shall be added to the tax or fee in

19  the amount of 10 percent of either the tax or fee shown on the

20  return that is not timely filed or any tax or fee not paid

21  timely. The penalty may not be less than $50 for failure to

22  timely file a tax return required by s. 212.11(1) or timely

23  pay the tax or fee shown due on the return except as provided

24  in s. 213.21(10). If a person fails to timely file a return

25  required by s. 212.11(1) and to timely pay the tax or fee

26  shown due on the return, only one penalty of 10 percent, which

27  may not be less than $50, shall be imposed.

28         (b)  When any person required under this section to

29  make a return or to pay a tax or fee imposed by this chapter

30  fails to disclose the tax or fee on the return within the time

31  required, excluding a noncompliant filing event generated by

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  situations covered in paragraph (a), in addition to all other

 2  penalties provided in this section and by the laws of this

 3  state in respect to such taxes or fees, a specific penalty

 4  shall be added to the additional tax or fee owed in the amount

 5  of 10 percent of any such unpaid tax or fee not paid timely if

 6  the failure is for not more than 30 days, with an additional

 7  10 percent of any such unpaid tax or fee for each additional

 8  30 days, or fraction thereof, while the failure continues, not

 9  to exceed a total penalty of 50 percent, in the aggregate, of

10  any unpaid tax or fee.

11         (c)  Any person who knowingly and with a willful intent

12  to evade any tax imposed under this chapter fails to file six

13  consecutive returns as required by law commits a felony of the

14  third degree, punishable as provided in s. 775.082 or s.

15  775.083.

16         (d)  Any person who makes a false or fraudulent return

17  with a willful intent to evade payment of any tax or fee

18  imposed under this chapter shall, in addition to the other

19  penalties provided by law, be liable for a specific penalty of

20  100 percent of the tax bill or fee and, upon conviction, for

21  fine and punishment as provided in s. 775.082, s. 775.083, or

22  s. 775.084.

23         1.  If the total amount of unreported taxes or fees is

24  less than $300, the first offense resulting in conviction is a

25  misdemeanor of the second degree, the second offense resulting

26  in conviction is a misdemeanor of the first degree, and the

27  third and all subsequent offenses resulting in conviction is a

28  misdemeanor of the first degree, and the third and all

29  subsequent offenses resulting in conviction are felonies of

30  the third degree.

31  

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1         2.  If the total amount of unreported taxes or fees is

 2  $300 or more but less than $20,000, the offense is a felony of

 3  the third degree.

 4         3.  If the total amount of unreported taxes or fees is

 5  $20,000 or more but less than $100,000, the offense is a

 6  felony of the second degree.

 7         4.  If the total amount of unreported taxes or fees is

 8  $100,000 or more, the offense is a felony of the first degree.

 9         (e)  A person who willfully attempts in any manner to

10  evade or defeat any tax or fee imposed under this chapter or

11  the payment thereof commits a felony of the third degree and,

12  in addition to other penalties provided by law, is liable for

13  a specific penalty of 100 percent of the tax bill or fee and,

14  upon conviction, for fine and punishment as provided in s.

15  775.082, s. 775.083, or s. 775.084.

16         (f)(e)  When any person, firm, or corporation fails to

17  timely remit the proper estimated payment required under s.

18  212.11, a specific penalty shall be added in an amount equal

19  to 10 percent of any unpaid estimated tax. Beginning with

20  January 1, 1985, returns, the department, upon a showing of

21  reasonable cause, is authorized to waive or compromise

22  penalties imposed by this paragraph. However, other penalties

23  and interest shall be due and payable if the return on which

24  the estimated payment was due was not timely or properly

25  filed.

26         (g)(f)  Dealers filing a consolidated return pursuant

27  to s. 212.11(1)(e) shall be subject to the penalty established

28  in paragraph (e) unless the dealer has paid the required

29  estimated tax for his or her consolidated return as a whole

30  without regard to each location.  If the dealer fails to pay

31  the required estimated tax for his or her consolidated return

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    Florida Senate - 2004                                  SB 2218
    35-1473-04




 1  as a whole, each filing location shall stand on its own with

 2  respect to calculating penalties pursuant to paragraph (e).

 3         Section 7.  Subsection (10) of section 213.21, Florida

 4  Statutes, is amended to read:

 5         213.21  Informal conferences; compromises.--

 6         (10)(a)  Effective July 1, 2003, Notwithstanding any

 7  other provision of law and solely for the purpose of

 8  administering the taxes tax imposed by ss. 125.0104 and

 9  125.0108 and chapter 212, except s. 212.0606, under the

10  circumstances set forth in this subsection, the department

11  shall settle or compromise a taxpayer's liability for penalty

12  without requiring the taxpayer to submit a written request for

13  compromise or settlement.

14         (b)  For taxpayers who file returns and remit tax on a

15  monthly basis:

16         1.  Any penalty related to a noncompliant filing event

17  shall be settled or compromised if the taxpayer has:

18         a.  No noncompliant filing event in the immediately

19  preceding 12-month period and no unresolved chapter 212

20  liability under s. 125.0104, s. 125.0108, or chapter 212

21  resulting from a noncompliant filing event; or

22         b.  One noncompliant filing event in the immediately

23  preceding 12-month period, resolution of the current

24  noncompliant filing event through payment of tax and interest

25  and the filing of a return within 30 days after notification

26  by the department, and no unresolved chapter 212 liability

27  under s. 125.0104, s. 125.0108, or chapter 212 resulting from

28  a noncompliant filing event.

29         2.  If a taxpayer has two or more noncompliant filing

30  events in the immediately preceding 12-month period, the

31  taxpayer shall be liable, absent a showing by the taxpayer

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    Florida Senate - 2004                                  SB 2218
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 1  that the noncompliant filing event was due to extraordinary

 2  circumstances, for the penalties provided in s. 125.0104 or s.

 3  125.0108 and s. 212.12, including loss of collection

 4  allowance, and shall be reported to a credit bureau.

 5         (c)  For taxpayers who file returns and remit tax on a

 6  quarterly basis, any penalty related to a noncompliant filing

 7  event shall be settled or compromised if the taxpayer has no

 8  noncompliant filing event in the immediately preceding

 9  12-month period and no unresolved chapter 212 liability under

10  s. 125.0104, s. 125.0108, or chapter 212 resulting from a

11  noncompliant filing event.

12         (d)  For purposes of this subsection:

13         1.  "Noncompliant filing event" means a failure to

14  timely file a complete and accurate return required under s.

15  125.0104, s. 125.0108, or chapter 212 or a failure to timely

16  pay the amount of tax reported on a return required by s.

17  125.0104, s. 125.0108, or chapter 212.

18         2.  "Extraordinary circumstances" means the occurrence

19  of events beyond the control of the taxpayer, such as, but not

20  limited to, the death of the taxpayer, acts of war or

21  terrorism, natural disasters, fire, or other casualty, or the

22  nonfeasance or misfeasance of the taxpayer's employees or

23  representatives responsible for compliance with s. 125.0104,

24  s. 125.0108, or the provisions of chapter 212. With respect to

25  the acts of an employee or representative, the taxpayer must

26  show that the principals of the business lacked actual

27  knowledge of the noncompliance and that the noncompliance was

28  resolved within 30 days after actual knowledge.

29         Section 8.  Section 7 of this act, which amends section

30  213.21, Florida Statutes, shall operate retroactively to July

31  1, 2003.

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    Florida Senate - 2004                                  SB 2218
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 1         Section 9.  Effective July 1, 2004, section 213.758,

 2  Florida Statutes, is created to read:

 3         213.758  Procedure regarding unclaimed evidence.--

 4         (1)  Title to unclaimed evidence or unclaimed tangible

 5  personal property lawfully seized pursuant to an

 6  investigation, obtained for use as evidence in a proceeding,

 7  or held as evidence by the department shall vest permanently

 8  in the department 60 days after the conclusion of the related

 9  legal proceeding.

10         (a)  If the property is of appreciable value, the

11  department may elect to:

12         1.  Retain the property for the department's own use;

13  or

14         2.  Transfer the property to another unit of state or

15  local government.

16         (b)  If the property is not of appreciable value, the

17  agency may elect to destroy it.

18         (2)  The department shall prescribe by rule procedures

19  to be followed when transferring title or record of ownership

20  of property of appreciable value or when destroying property

21  not of appreciable value. The rule must also set forth

22  criteria regarding treatment of unclaimed evidence or

23  unclaimed tangible personal property, including, but not

24  limited to, notice and timing requirements.

25         (3)  This section applies to all unclaimed evidence or

26  unclaimed tangible personal property possessed by the

27  department on the date this section takes effect.

28         Section 10.  Except as otherwise expressly provided in

29  this act, this act shall take effect upon becoming a law.

30  

31  

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    Florida Senate - 2004                                  SB 2218
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Amends provisions relating to tax administration. Allows
      the personal representative of an estate that is not
 4    subject to tax under ch. 198, F.S., to execute an
      affidavit attesting that the estate is not taxable.
 5    Provides for taxation of sales of timeshare interests in
      timeshare plans. Provides special provisions for the tax
 6    on deeds and other instruments relating to real property
      or interests in real property as applied to the sales of
 7    timeshare interests in timeshare plans. Provides special
      provisions for the tax on notes as applied to the sales
 8    of timeshare interests in timeshare plans. Expands the
      definition of the term "service address." Provides that a
 9    person who willfully attempts in any manner to evade or
      defeat a tax or fee imposed under ch. 212, F.S., commits
10    a felony of the third degree. Provides an additional
      penalty. Provides that taxes imposed under ss. 124.0104
11    and 125.0108, F.S., qualify for the automatic penalty
      compromise or settlement provided for in s. 213.21, F.S.
12    Provides an exception. Provides for retroactivity.
      Provides the Department of Revenue direction for the
13    retention and destruction of unclaimed evidence. Provides
      for rulemaking.
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