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.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
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.
166
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.