December 08, 2019
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Senate Bill 2322

Senate Bill sb2322c1

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

    By the Committee on Comprehensive Planning; and Senator
    Haridopolos




    316-2612-04

  1                      A bill to be entitled

  2         An act relating to communications services

  3         taxes; amending s. 202.16, F.S.; providing

  4         requirements for dealers making certain sales

  5         for resale; providing procedures and

  6         limitations; providing a definition; providing

  7         responsibilities of the Department of Revenue;

  8         amending s. 202.19, F.S.; clarifying the

  9         inclusion of certain fees and costs in the tax

10         rate; amending s. 202.20, F.S.; authorizing the

11         Department of Revenue or a dealer to make an

12         adjustment in the event of a reallocation of

13         revenue away from local government; repealing

14         s. 202.20(2)(a), F.S., relating to obsolete tax

15         rate provisions; amending s. 202.21, F.S., to

16         conform; specifying certain revisions to law as

17         remedial and clarifying; granting no right to a

18         refund of any fees or charges paid prior to a

19         certain date; providing an exception; providing

20         an effective date.

21  

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

23  

24         Section 1.  Effective December 31, 2004, subsection (2)

25  of section 202.16, Florida Statutes, is amended to read:

26         202.16  Payment.--The taxes imposed or administered

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

28  dealers of taxable communications services on the sale at

29  retail in this state of communications services taxable under

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

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

                                  1

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




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

 2  in the same manner as a cash sale.

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

 4  as a component part of or integrated into a communications

 5  service or prepaid calling arrangement for resale, including,

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

 7  charges paid by providers of mobile communication services or

 8  other communication services, charges paid by cable service

 9  providers for the transmission of video or other programming

10  by another dealer of communications services, charges for the

11  sale of unbundled network elements, and any other intercompany

12  charges for the use of facilities for providing communications

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

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

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

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

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

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

19  document the exempt nature of the transaction, as established

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

21  purchaser's initial or annual resale certificate issued

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

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

24  an authorization number provided telephonically or

25  electronically by the department, or by such other means

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

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

28  202.17(6), valid at the time of receipt from the purchaser,

29  without seeking additional annual resale certificates from

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

31  purchaser in the normal course of business on a continual

                                  2

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




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

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

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

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

 5  dealer sells to a purchaser who has an established cash

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

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

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

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

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

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

12  the Department of Revenue, provide the department with

13  evidence of the exempt status of a sale. Exemption

14  certificates executed by entities that were exempt at the time

15  of sale, resale certificates provided by purchasers who were

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

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

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

19  the department when submitted during the protest period, but

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

21  circuit court action instituted under chapter 72.

22         Section 2.  Paragraph (a) of subsection (3) of section

23  202.19, Florida Statutes, is amended to read:

24         202.19  Authorization to impose local communications

25  services tax.--

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

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

28  but not limited to, application fees, transfer fees, renewal

29  fees, or claims for related costs, to which the municipality

30  or county is otherwise entitled for granting permission to

31  dealers of communications services, including, but not limited

                                  3

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




 1  to, providers of cable television services, as authorized in

 2  47 U.S.C. s. 542, to use or occupy its roads or rights-of-way

 3  for the placement, construction, and maintenance of poles,

 4  wires, and other fixtures used in the provision of

 5  communications services.

 6         Section 3.  Subsection (2) of section 202.20, Florida

 7  Statutes, is amended to read:

 8         202.20  Local communications services tax conversion

 9  rates.--

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

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

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

13  revenues received by that local government from the local

14  communications services tax imposed under subsection (1) are

15  less than the revenues received from the replaced revenue

16  sources for the corresponding 2000-2001 period; plus

17  reasonably anticipated growth in such revenues over the

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

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

20  amount representing the revenues from the replaced revenue

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

22  jurisdiction was required to forego, the governing authority

23  may adjust the rate of the local communications services tax

24  upward to the extent necessary to generate the entire

25  shortfall in revenues within 1 year after the rate adjustment

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

27  revenue on an ongoing basis.

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

29  determining whether the revenues received by a local

30  government from the local communications services tax imposed

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

                                  4

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




 1  the replaced revenue sources for the corresponding 2000-2001

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

 3  shall use the best data available for the corresponding

 4  2000-2001 period in making such determination.

 5         3.  The adjustment permitted under subparagraph 1. may

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

 7  notwithstanding the maximum rate established under s.

 8  202.19(2) and notwithstanding any schedules or timeframes or

 9  any other limitations contained in this chapter. The authority

10  to make such adjustment may be exercised only in the event of

11  a reallocation of revenue away from the local government by

12  the Department of Revenue or a dealer. The emergency ordinance

13  or resolution shall specify an effective date for the adjusted

14  rate, which shall be no less than 60 days after the date of

15  adoption of the ordinance or resolution and shall be effective

16  with respect to taxable services included on bills that are

17  dated on the first day of a month subsequent to the expiration

18  of the 60-day period. At the end of 1 year following the

19  effective date of such adjusted rate, the local governing

20  authority shall, as soon as is consistent with s. 202.21,

21  reduce the rate by that portion of the emergency rate which

22  was necessary to recoup the amount of revenues not received

23  prior to the implementation of the emergency rate.

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

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

26  government from the local communications services tax

27  conversion rate established under subsection (1), adjusted

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

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

30  above the threshold of 10 percent more than the revenues

31  received from the replaced revenue sources for the

                                  5

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




 1  corresponding 2000-2001 period plus reasonably anticipated

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

 3  based on the average growth of such revenues over the

 4  immediately preceding 5-year period, the governing authority

 5  must adjust the rate of the local communications services tax

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

 7  emergency ordinance or resolution within the timeframes

 8  established in subparagraph 3.  The foregoing rate adjustment

 9  requirement shall not apply to a local government that adopts

10  a local communications services tax rate by resolution or

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

12  determining whether the revenues exceed the threshold, the

13  local government shall use the best data available for the

14  corresponding 2000-2001 period in making such determination.

15  This subparagraph shall not be construed as establishing a

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

17  challenge a local government's implementation of this

18  subparagraph.

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

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

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

22  extent that the respective local taxing jurisdictions were

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

24         1.  With respect to municipalities and charter counties

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

26         a.  The public service tax on telecommunications

27  authorized by former s. 166.231(9).

28         b.  Franchise fees on cable service providers as

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

30         c.  The public service tax on prepaid calling

31  arrangements.

                                  6

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




 1         d.  Franchise fees on dealers of communications

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

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

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

 5  charter counties be treated as having had the same authority

 6  as municipalities to impose franchise fees on recurring local

 7  telecommunication service revenues prior to July 1, 2000.

 8  However, the Legislature recognizes that the authority of

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

10  treatment provided in this section is not an expression of

11  legislative intent that charter counties actually do or do not

12  possess such authority.

13         e.  Actual permit fees relating to placing or

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

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

16  communications services for the fiscal year ending September

17  30, 1999; however, if a municipality or charter county elects

18  the option to charge permit fees pursuant to s.

19  337.401(3)(c)1.a., such fees shall not be included as a

20  replaced revenue source.

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

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

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

24         Section 4.  Effective July 1, 2007, paragraph (a) of

25  subsection (2) of section 202.20, Florida Statutes, is

26  repealed.

27         Section 5.  Effective July 1, 2007, section 202.21,

28  Florida Statutes, is amended to read:

29         202.21  Effective dates; procedures for informing

30  dealers of communications services of tax levies and rate

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

                                  7

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




 1  local communications services tax imposed under s. 202.19 is

 2  effective with respect to taxable services included on bills

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

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

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

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

 7  September 1 immediately preceding such January 1. Notification

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

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

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

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

12  municipality or county to respond to inquiries concerning the

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

14  repeal, or change to all affected dealers of communications

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

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

17  communications services tax by emergency ordinance or

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

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

20  The department shall provide written notice of the adoption of

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

22  receiving such notice. In any notice to providers or

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

24  the department shall express the rate for a municipality or

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

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

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

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

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

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

31  

                                  8

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    Florida Senate - 2004                           CS for SB 2322
    316-2612-04




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

 2  202.19.

 3         Section 6.  The amendments to section 202.19(3)(a),

 4  Florida Statutes, contained in this act are remedial in nature

 5  and intended to clarify the law in effect on October 1, 2001,

 6  but do not grant any right to a refund of any fees or charges

 7  paid prior to July 1, 2004, unless the payment was made under

 8  written protest as to the authority of any local government to

 9  impose such fees or costs on a dealer.

10         Section 7.  Except as otherwise expressly provided in

11  this act, this act shall take effect July 1, 2004.

12  

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                         Senate Bill 2322

15                                 

16  This CS differs from the bill as filed in that it:

17  -    Excludes section 1, which proposed to delete intent
         provisions in s. 202.13, F.S.;
18  
    -    Includes an effective date of December 31, 2004, to the
19       proposed changes to s. 202.16(2), F.S.;

20  -    Excludes proposed changes to s. 202.19(2)(c), F.S., which
         addressed emergency rates;
21  
    -    Restores proposed deleted language in s. 202.20(2), F.S.,
22       which would have eliminated the emergency rate authority
         currently granted to local jurisdictions, amends it to
23       limit its application, and repeals it effective July 1,
         2007; and
24  
    -    Excludes section 6, which proposed changes to s.
25       202.24(2)(c), F.S., to specify the types of fees each
         public body is prohibited from levying on the sale or
26       purchase of communications services.

27  

28  

29  

30  

31  

                                  9

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