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Senate Bill 2322

Senate Bill sb2322

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2322

    By Senator Haridopolos





    26-946A-04                                              See HB

  1                      A bill to be entitled

  2         An act relating to communications services

  3         taxes; amending s. 202.13, F.S.; revising

  4         legislative intent; amending s. 202.16, F.S.;

  5         providing requirements for dealers making

  6         certain sales for resale; providing procedures

  7         and limitations; providing a definition;

  8         providing responsibilities of the Department of

  9         Revenue; amending s. 202.19, F.S.; revising

10         provisions limiting certain maximum rates;

11         clarifying the inclusion of certain fees and

12         costs in the tax rate; amending s. 202.20,

13         F.S.; deleting certain obsolete tax rate

14         provisions; amending s. 202.21, F.S., to

15         conform; amending s. 202.24, F.S.; including

16         certain fees and costs within a provision that

17         prohibits public bodies from levying or

18         collecting certain taxes from dealers or

19         purchasers of communications services;

20         specifying certain revisions to law as remedial

21         and clarifying; providing an effective date.

22  

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

24  

25         Section 1.  Subsection (1) of section 202.13, Florida

26  Statutes, is amended to read:

27         202.13  Intent.--

28         (1)  If the operation or imposition of the taxes

29  imposed or administered under this chapter is declared

30  invalid, ineffective, inapplicable, unconstitutional, or void

31  for any reason, chapters 166, 203, 212, and 337, as such

                                  1

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  chapters existed before January 1, 2000, shall fully apply to

 2  the sale, use, or consumption of communications services. If

 3  any exemption from the tax imposed or administered under this

 4  chapter is declared invalid, ineffective, inapplicable,

 5  unconstitutional, or void for any reason, such declaration

 6  shall not affect the taxes imposed or administered under this

 7  chapter, but such sale, use, or consumption shall be subject

 8  to the taxes imposed under this chapter to the same extent as

 9  if such exemption never existed.

10         Section 2.  Subsection (2) of section 202.16, Florida

11  Statutes, is amended to read:

12         202.16  Payment.--The taxes imposed or administered

13  under this chapter and chapter 203 shall be collected from all

14  dealers of taxable communications services on the sale at

15  retail in this state of communications services taxable under

16  this chapter and chapter 203. The full amount of the taxes on

17  a credit sale, installment sale, or sale made on any kind of

18  deferred payment plan is due at the moment of the transaction

19  in the same manner as a cash sale.

20         (2)(a)  A sale of communications services that are used

21  as a component part of or integrated into a communications

22  service or prepaid calling arrangement for resale, including,

23  but not limited to, carrier-access charges, interconnection

24  charges paid by providers of mobile communication services or

25  other communication services, charges paid by cable service

26  providers for the transmission of video or other programming

27  by another dealer of communications services, charges for the

28  sale of unbundled network elements, and any other intercompany

29  charges for the use of facilities for providing communications

30  services for resale, must be made in compliance with the rules

31  of the department. Any person who makes a sale for resale

                                  2

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  which is not in compliance with these rules is liable for any

 2  tax, penalty, and interest due for failing to comply, to be

 3  calculated pursuant to s. 202.28(2)(a).

 4         (b)  Any dealer who makes a sale for resale shall

 5  document the exempt nature of the transaction, as established

 6  by rules adopted by the department, by retaining a copy of the

 7  purchaser's initial or annual resale certificate issued

 8  pursuant to s. 202.17(6). In lieu of maintaining a copy of the

 9  certificate, a dealer may document, prior to the time of sale,

10  an authorization number provided telephonically or

11  electronically by the department, or by such other means

12  established by rule of the department. The dealer may rely on

13  an initial or annual resale certificate issued pursuant to s.

14  202.17(6), valid at the time of receipt from the purchaser,

15  without seeking additional annual resale certificates from

16  such purchaser, if the dealer makes recurring sales to such

17  purchaser in the normal course of business on a continual

18  basis. For purposes of this paragraph, the term "recurring

19  sales to a purchaser in the normal course of business" means a

20  sale in which the dealer extends credit to the purchaser and

21  records the debt as an account receivable, or in which the

22  dealer sells to a purchaser who has an established cash

23  account, similar to an open credit account. For purposes of

24  this paragraph, purchases are made from a selling dealer on a

25  continual basis if the selling dealer makes, in the normal

26  course of business, sales to the purchaser no less frequently

27  than once in every 12-month period. A dealer may, through the

28  informal protest provided for in s. 213.21 and the rules of

29  the Department of Revenue, provide the department with

30  evidence of the exempt status of a sale. Exemption

31  certificates executed by entities that were exempt at the time

                                  3

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  of sale, resale certificates provided by purchasers who were

 2  active dealers at the time of sale, and verification by the

 3  department of a purchaser's active dealer status at the time

 4  of sale in lieu of a resale certificate shall be accepted by

 5  the department when submitted during the protest period, but

 6  may not be accepted in any proceeding under chapter 120 or any

 7  circuit court action instituted under chapter 72.

 8         Section 3.  Paragraph (c) of subsection (2), paragraph

 9  (a) of subsection (3), and subsection (5) of section 202.19,

10  Florida Statutes, are amended to read:

11         202.19  Authorization to impose local communications

12  services tax.--

13         (2)

14         (c)  The maximum rates authorized by paragraphs (a) and

15  (b) do not include the add-ons of up to 0.12 percent for

16  municipalities and charter counties or of up to 0.24 percent

17  for noncharter counties authorized pursuant to s. 337.401, nor

18  do they supersede conversion or emergency rates authorized by

19  s. 202.20(1), or emergency rates previously authorized by s.

20  202.20(2) as such provision existed prior to July 1, 2004,

21  202.20 which are in excess of these maximum rates.

22         (3)(a)  The tax authorized under this section includes

23  and is in lieu of any fee or other consideration, including,

24  but not limited to, application fees, transfer fees, siting

25  fees, renewal fees, or claims for related costs, to which the

26  municipality or county is otherwise entitled for granting

27  permission to dealers of communications services, including,

28  but not limited to, providers of cable television services, as

29  authorized in 47 U.S.C. s. 542, to use or occupy its roads or

30  rights-of-way for the placement, construction, and maintenance

31  

                                  4

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  of poles, wires, towers, and other fixtures used in the

 2  provision of communications services.

 3         (5)  In addition to the communications services taxes

 4  authorized by subsection (1), a discretionary sales surtax

 5  that a county or school board has levied under s. 212.055 is

 6  imposed as a local communications services tax under this

 7  section, and the rate shall be determined in accordance with

 8  s. 202.20(2)(3).

 9         (a)  Except as otherwise provided in this subsection,

10  each such tax rate shall be applied, in addition to the other

11  tax rates applied under this chapter, to communications

12  services subject to tax under s. 202.12 which:

13         1.  Originate or terminate in this state; and

14         2.  Are charged to a service address in the county.

15         (b)  With respect to private communications services,

16  the tax shall be on the sales price of such services provided

17  within the county, which shall be determined in accordance

18  with the following provisions:

19         1.  Any charge with respect to a channel termination

20  point located within such county;

21         2.  Any charge for the use of a channel between two

22  channel termination points located in such county; and

23         3.  Where channel termination points are located both

24  within and outside of such county:

25         a.  If any segment between two such channel termination

26  points is separately billed, 50 percent of such charge; and

27         b.  If any segment of the circuit is not separately

28  billed, an amount equal to the total charge for such circuit

29  multiplied by a fraction, the numerator of which is the number

30  of channel termination points within such county and the

31  

                                  5

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  denominator of which is the total number of channel

 2  termination points of the circuit.

 3         Section 4.  Subsections (2) and (3) of section 202.20,

 4  Florida Statutes, are amended to read:

 5         202.20  Local communications services tax conversion

 6  rates.--

 7         (2)(a)1.  With respect to any local taxing

 8  jurisdiction, if, for the periods ending December 31, 2001;

 9  March 31, 2002; June 30, 2002; or September 30, 2002, the

10  revenues received by that local government from the local

11  communications services tax imposed under subsection (1) are

12  less than the revenues received from the replaced revenue

13  sources for the corresponding 2000-2001 period; plus

14  reasonably anticipated growth in such revenues over the

15  preceding 1-year period, based on the average growth of such

16  revenues over the immediately preceding 5-year period; plus an

17  amount representing the revenues from the replaced revenue

18  sources for the 1-month period that the local taxing

19  jurisdiction was required to forego, the governing authority

20  may adjust the rate of the local communications services tax

21  upward to the extent necessary to generate the entire

22  shortfall in revenues within 1 year after the rate adjustment

23  and by an amount necessary to generate the expected amount of

24  revenue on an ongoing basis.

25         2.  If complete data are not available at the time of

26  determining whether the revenues received by a local

27  government from the local communications services tax imposed

28  under subsection (1) are less than the revenues received from

29  the replaced revenue sources for the corresponding 2000-2001

30  period, as set forth in subparagraph 1., the local government

31  

                                  6

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  shall use the best data available for the corresponding

 2  2000-2001 period in making such determination.

 3         3.  The adjustment permitted under subparagraph 1. may

 4  be made by emergency ordinance or resolution and may be made

 5  notwithstanding the maximum rate established under s.

 6  202.19(2) and notwithstanding any schedules or timeframes or

 7  any other limitations contained in this chapter. The emergency

 8  ordinance or resolution shall specify an effective date for

 9  the adjusted rate, which shall be no less than 60 days after

10  the date of adoption of the ordinance or resolution and shall

11  be effective with respect to taxable services included on

12  bills that are dated on the first day of a month subsequent to

13  the expiration of the 60-day period. At the end of 1 year

14  following the effective date of such adjusted rate, the local

15  governing authority shall, as soon as is consistent with s.

16  202.21, reduce the rate by that portion of the emergency rate

17  which was necessary to recoup the amount of revenues not

18  received prior to the implementation of the emergency rate.

19         4.  If, for the period October 1, 2001, through

20  September 30, 2002, the revenues received by a local

21  government from the local communications services tax

22  conversion rate established under subsection (1), adjusted

23  upward for the difference in rates between paragraphs (1)(a)

24  and (b) or any other rate adjustments or base changes, are

25  above the threshold of 10 percent more than the revenues

26  received from the replaced revenue sources for the

27  corresponding 2000-2001 period plus reasonably anticipated

28  growth in such revenues over the preceding 1-year period,

29  based on the average growth of such revenues over the

30  immediately preceding 5-year period, the governing authority

31  must adjust the rate of the local communications services tax

                                  7

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  to the extent necessary to reduce revenues to the threshold by

 2  emergency ordinance or resolution within the timeframes

 3  established in subparagraph 3. The foregoing rate adjustment

 4  requirement shall not apply to a local government that adopts

 5  a local communications services tax rate by resolution or

 6  ordinance. If complete data are not available at the time of

 7  determining whether the revenues exceed the threshold, the

 8  local government shall use the best data available for the

 9  corresponding 2000-2001 period in making such determination.

10  This subparagraph shall not be construed as establishing a

11  right of action for any person to enforce this subparagraph or

12  challenge a local government's implementation of this

13  subparagraph.

14         (b)  Except as otherwise provided in this subsection,

15  "replaced revenue sources," as used in this section, means the

16  following taxes, charges, fees, or other impositions to the

17  extent that the respective local taxing jurisdictions were

18  authorized to impose them prior to July 1, 2000.

19         1.  With respect to municipalities and charter counties

20  and the taxes authorized by s. 202.19(1):

21         a.  The public service tax on telecommunications

22  authorized by former s. 166.231(9).

23         b.  Franchise fees on cable service providers as

24  authorized by 47 U.S.C. s. 542.

25         c.  The public service tax on prepaid calling

26  arrangements.

27         d.  Franchise fees on dealers of communications

28  services which use the public roads or rights-of-way, up to

29  the limit set forth in s. 337.401. For purposes of calculating

30  rates under this section, it is the legislative intent that

31  charter counties be treated as having had the same authority

                                  8

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  as municipalities to impose franchise fees on recurring local

 2  telecommunication service revenues prior to July 1, 2000.

 3  However, the Legislature recognizes that the authority of

 4  charter counties to impose such fees is in dispute, and the

 5  treatment provided in this section is not an expression of

 6  legislative intent that charter counties actually do or do not

 7  possess such authority.

 8         e.  Actual permit fees relating to placing or

 9  maintaining facilities in or on public roads or rights-of-way,

10  collected from providers of long-distance, cable, and mobile

11  communications services for the fiscal year ending September

12  30, 1999; however, if a municipality or charter county elects

13  the option to charge permit fees pursuant to s.

14  337.401(3)(c)1.a., such fees shall not be included as a

15  replaced revenue source.

16         2.  With respect to all other counties and the taxes

17  authorized in s. 202.19(1), franchise fees on cable service

18  providers as authorized by 47 U.S.C. s. 542.

19         (2)(3)  For any county or school board that levies a

20  discretionary surtax under s. 212.055, the rate of such tax on

21  communications services as authorized by s. 202.19(5) shall be

22  as follows:

23  

24  County       .5%             1%                 1.5%

25               Discretionary   Discretionary      Discretionary

26               surtax          surtax             surtax

27               conversion      conversion         conversion

28               rates           rates              rates

29    

30  Alachua        0.3%           0.6%                0.8%

31  Baker          0.3%           0.5%                0.8%

                                  9

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  Bay            0.3%           0.5%                0.8%

 2  Bradford       0.3%           0.6%                0.8%

 3  Brevard        0.3%           0.6%                0.9%

 4  Broward        0.3%           0.5%                0.8%

 5  Calhoun        0.3%           0.5%                0.8%

 6  Charlotte      0.3%           0.6%                0.9%

 7  Citrus         0.3%           0.6%                0.9%

 8  Clay           0.3%           0.6%                0.8%

 9  Collier        0.4%           0.7%                1.0%

10  Columbia       0.3%           0.6%                0.9%

11  Dade           0.3%           0.5%                0.8%

12  Desoto         0.3%           0.6%                0.8%

13  Dixie          0.3%           0.5%                0.8%

14  Duval          0.3%           0.6%                0.8%

15  Escambia       0.3%           0.6%                0.9%

16  Flagler        0.4%           0.7%                1.0%

17  Franklin       0.3%           0.6%                0.9%

18  Gadsden        0.3%           0.5%                0.8%

19  Gilchrist      0.3%           0.5%                0.7%

20  Glades         0.3%           0.6%                0.8%

21  Gulf           0.3%           0.5%                0.8%

22  Hamilton       0.3%           0.6%                0.8%

23  Hardee         0.3%           0.5%                0.8%

24  Hendry         0.3%           0.6%                0.9%

25  Hernando       0.3%           0.6%                0.9%

26  Highlands      0.3%           0.6%                0.9%

27  Hillsborough   0.3%           0.6%                0.8%

28  Holmes         0.3%           0.6%                0.8%

29  Indian River   0.3%           0.6%                0.9%

30  Jackson        0.3%           0.5%                0.7%

31  Jefferson      0.3%           0.5%                0.8%

                                  10

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  Lafayette      0.3%           0.5%                0.7%

 2  Lake           0.3%           0.6%                0.9%

 3  Lee            0.3%           0.6%                0.9%

 4  Leon           0.3%           0.6%                0.8%

 5  Levy           0.3%           0.5%                0.8%

 6  Liberty        0.3%           0.6%                0.8%

 7  Madison        0.3%           0.5%                0.8%

 8  Manatee        0.3%           0.6%                0.8%

 9  Marion         0.3%           0.5%                0.8%

10  Martin         0.3%           0.6%                0.8%

11  Monroe         0.3%           0.6%                0.9%

12  Nassau         0.3%           0.6%                0.8%

13  Okaloosa       0.3%           0.6%                0.8%

14  Okeechobee     0.3%           0.6%                0.9%

15  Orange         0.3%           0.5%                0.8%

16  Osceola        0.3%           0.5%                0.8%

17  Palm Beach     0.3%           0.6%                0.8%

18  Pasco          0.3%           0.6%                0.9%

19  Pinellas       0.3%           0.6%                0.9%

20  Polk           0.3%           0.6%                0.8%

21  Putnam         0.3%           0.6%                0.8%

22  St. Johns      0.3%           0.6%                0.8%

23  St. Lucie      0.3%           0.6%                0.8%

24  Santa Rosa     0.3%           0.6%                0.9%

25  Sarasota       0.3%           0.6%                0.9%

26  Seminole       0.3%           0.6%                0.8%

27  Sumter         0.3%           0.5%                0.8%

28  Suwannee       0.3%           0.6%                0.8%

29  Taylor         0.3%           0.6%                0.9%

30  Union          0.3%           0.5%                0.8%

31  Volusia        0.3%           0.6%                0.8%

                                  11

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  Wakulla        0.3%           0.6%                0.9%

 2  Walton         0.3%           0.6%                0.9%

 3  Washington     0.3%           0.5%                0.8%

 4  

 5  The discretionary surtax conversion rate with respect to

 6  communications services reflected on bills dated on or after

 7  October 1, 2001, shall take effect without any further action

 8  by a county or school board that has levied a surtax on or

 9  before October 1, 2001. For a county or school board that

10  levies a surtax subsequent to October 1, 2001, the

11  discretionary surtax conversion rate with respect to

12  communications services shall take effect upon the effective

13  date of the surtax as provided in s. 212.054. The

14  discretionary sales surtax rate on communications services for

15  a county or school board levying a combined rate which is not

16  listed in the table provided by this subsection shall be

17  calculated by averaging or adding the appropriate rates from

18  the table and rounding up to the nearest tenth of a percent.

19         Section 5.  Section 202.21, Florida Statutes, is

20  amended to read:

21         202.21  Effective dates; procedures for informing

22  dealers of communications services of tax levies and rate

23  changes.--Any adoption, repeal, or change in the rate of a

24  local communications services tax imposed under s. 202.19 is

25  effective with respect to taxable services included on bills

26  that are dated on or after the January 1 subsequent to such

27  adoption, repeal, or change. A municipality or county

28  adopting, repealing, or changing the rate of such tax must

29  notify the department of the adoption, repeal, or change by

30  September 1 immediately preceding such January 1. Notification

31  must be furnished on a form prescribed by the department and

                                  12

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1  must specify the rate of tax; the effective date of the

 2  adoption, repeal, or change thereof; and the name, mailing

 3  address, and telephone number of a person designated by the

 4  municipality or county to respond to inquiries concerning the

 5  tax. The department shall provide notice of such adoption,

 6  repeal, or change to all affected dealers of communications

 7  services at least 90 days before the effective date of the

 8  tax. Any local government that adjusts the rate of its local

 9  communications services tax by emergency ordinance or

10  resolution pursuant to s. 202.20(2) shall notify the

11  department of the new tax rate immediately upon its adoption.

12  The department shall provide written notice of the adoption of

13  the new rate to all affected dealers within 30 days after

14  receiving such notice. In any notice to providers or

15  publication of local tax rates for purposes of this chapter,

16  the department shall express the rate for a municipality or

17  charter county as the sum of the tax rates levied within such

18  jurisdiction pursuant to s. 202.19(2)(a) and (5), and shall

19  express the rate for any other county as the sum of the tax

20  rates levied pursuant to s. 202.19(2)(b) and (5). The

21  department is not liable for any loss of or decrease in

22  revenue by reason of any error, omission, or untimely action

23  that results in the nonpayment of a tax imposed under s.

24  202.19.

25         Section 6.  Paragraph (a) of subsection (2) of section

26  202.24, Florida Statutes, is amended to read:

27         202.24  Limitations on local taxes and fees imposed on

28  dealers of communications services.--

29         (2)(a)  Except as provided in paragraph (c), each

30  public body is prohibited from:

31  

                                  13

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    Florida Senate - 2004                                  SB 2322
    26-946A-04                                              See HB




 1         1.  Levying on or collecting from dealers or purchasers

 2  of communications services any tax, charge, fee, or other

 3  imposition on or with respect to the provision or purchase of

 4  communications services, including, but not limited to,

 5  application fees, transfer fees, siting fees, renewal fees, or

 6  claims for related costs.

 7         2.  Requiring any dealer of communications services to

 8  enter into or extend the term of a franchise or other

 9  agreement that requires the payment of a tax, charge, fee, or

10  other imposition.

11         3.  Adopting or enforcing any provision of any

12  ordinance or agreement to the extent that such provision

13  obligates a dealer of communications services to charge,

14  collect, or pay to the public body a tax, charge, fee, or

15  other imposition.

16  

17  Each municipality and county retains authority to negotiate

18  all terms and conditions of a cable service franchise allowed

19  by federal and state law except those terms and conditions

20  related to franchise fees and the definition of gross revenues

21  or other definitions or methodologies related to the payment

22  or assessment of franchise fees on providers of cable

23  services.

24         Section 7.  The amendments to sections 202.19(3)(a) and

25  202.24(2)(a), Florida Statutes, contained in this act are

26  remedial in nature and intended to clarify the law in effect

27  on the effective date of this act.

28         Section 8.  This act shall take effect July 1, 2004.

29  

30  

31  

                                  14

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