Bill Text: FL S1978 | 2010 | Regular Session | Introduced

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Bill Title: Violations of Tax Statutes/Criminal Penalties [WPSC]

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2010-04-30 - Died in Committee on Finance and Tax [S1978 Detail]

Download: Florida-2010-S1978-Introduced.html

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Florida Senate - 2010                                    SB 1978 
 
By Senator Altman 
24-01297-10                                           20101978__ 
1                        A bill to be entitled 
2         An act relating to criminal penalties for violations 
3         of tax statutes; amending s. 212.07, F.S.; conforming 
4         a cross-reference; imposing criminal penalties on a 
5         dealer who willfully fails to collect certain taxes or 
6         fees after notice of a duty to collect the taxes or 
7         fees by the Department of Revenue; defining the term 
8         “willful”; specifying authorized means of notice; 
9         amending s. 212.12, F.S.; revising provisions imposing 
10         criminal penalties on a person who makes a false or 
11         fraudulent return with a willful intent to evade 
12         payment of taxes or fees; deleting provisions relating 
13         to criminal penalties for failing to register as a 
14         dealer or to collect tax after notice from the 
15         Department of Revenue; amending s. 212.18, F.S.; 
16         providing criminal penalties for willfully failing to 
17         register as a dealer after notice from the Department 
18         of Revenue; defining the term “willful”; requiring the 
19         department to send written notice of the duty to 
20         register by certain specified means; providing an 
21         effective date. 
22 
23  Be It Enacted by the Legislature of the State of Florida: 
24 
25         Section 1. Subsections (1) and (3) of section 212.07, 
26  Florida Statutes, are amended to read: 
27         212.07 Sales, storage, use tax; tax added to purchase 
28  price; dealer not to absorb; liability of purchasers who cannot 
29  prove payment of the tax; penalties; general exemptions.— 
30         (1)(a) The privilege tax herein levied measured by retail 
31  sales shall be collected by the dealers from the purchaser or 
32  consumer. 
33         (b) A resale must be in strict compliance with s. 212.18 
34  and the rules and regulations, and any dealer who makes a sale 
35  for resale which is not in strict compliance with s. 212.18 and 
36  the rules and regulations shall himself or herself be liable for 
37  and pay the tax. Any dealer who makes a sale for resale shall 
38  document the exempt nature of the transaction, as established by 
39  rules promulgated by the department, by retaining a copy of the 
40  purchaser’s resale certificate. In lieu of maintaining a copy of 
41  the certificate, a dealer may document, prior to the time of 
42  sale, an authorization number provided telephonically or 
43  electronically by the department, or by such other means 
44  established by rule of the department. The dealer may rely on a 
45  resale certificate issued pursuant to s. 212.18(3)(d) s. 
46  212.18(3)(c), valid at the time of receipt from the purchaser, 
47  without seeking annual verification of the resale certificate if 
48  the dealer makes recurring sales to a purchaser in the normal 
49  course of business on a continual basis. For purposes of this 
50  paragraph, “recurring sales to a purchaser in the normal course 
51  of business” refers to a sale in which the dealer extends credit 
52  to the purchaser and records the debt as an account receivable, 
53  or in which the dealer sells to a purchaser who has an 
54  established cash or C.O.D. account, similar to an open credit 
55  account. For purposes of this paragraph, purchases are made from 
56  a selling dealer on a continual basis if the selling dealer 
57  makes, in the normal course of business, sales to the purchaser 
58  no less frequently than once in every 12-month period. A dealer 
59  may, through the informal protest provided for in s. 213.21 and 
60  the rules of the Department of Revenue, provide the department 
61  with evidence of the exempt status of a sale. Consumer 
62  certificates of exemption executed by those exempt entities that 
63  were registered with the department at the time of sale, resale 
64  certificates provided by purchasers who were active dealers at 
65  the time of sale, and verification by the department of a 
66  purchaser’s active dealer status at the time of sale in lieu of 
67  a resale certificate shall be accepted by the department when 
68  submitted during the protest period, but may not be accepted in 
69  any proceeding under chapter 120 or any circuit court action 
70  instituted under chapter 72. 
71         (c) Unless the purchaser of tangible personal property that 
72  is incorporated into tangible personal property manufactured, 
73  produced, compounded, processed, or fabricated for one’s own use 
74  and subject to the tax imposed under s. 212.06(1)(b) or is 
75  purchased for export under s. 212.06(5)(a)1. extends a 
76  certificate in compliance with the rules of the department, the 
77  dealer shall himself or herself be liable for and pay the tax. 
78         (3)(a) A Any dealer who fails, neglects, or refuses to 
79  collect the tax or fees imposed under this chapter herein 
80  provided, either by himself or herself or through the dealer’s 
81  agents or employees, is, in addition to the penalty of being 
82  liable for and paying the tax himself or herself, commits guilty 
83  of a misdemeanor of the first degree, punishable as provided in 
84  s. 775.082 or s. 775.083. 
85         (b) A dealer who willfully fails to collect a tax or fee 
86  after the department provides notice of the duty to collect the 
87  tax or fee is liable for a specific penalty of 100 percent of 
88  the uncollected tax or fee. This penalty is in addition to any 
89  other penalty that may be imposed by law. A dealer who willfully 
90  fails to collect taxes or fees totaling: 
91         1. Less than $300: 
92         a. For a first offense, commits a misdemeanor of the second 
93  degree, punishable as provided in s. 775.082 or s. 775.083. 
94         b. For a second offense, commits a misdemeanor of the first 
95  degree, punishable as provided in s. 775.082 or s. 775.083. 
96         c. For a third or subsequent offense, commits a felony of 
97  the third degree, punishable as provided in s. 775.082, s. 
98  775.083, or s. 775.084. 
99         2. Three hundred dollars or more, but less than $20,000, 
100  commits a felony of the third degree, punishable as provided in 
101  s. 775.082, s. 775.083, or s. 775.084. 
102         3. Twenty thousand dollars or more, but less than $100,000, 
103  commits a felony of the second degree, punishable as provided in 
104  s. 775.082, s. 775.083, or s. 775.084. 
105         4. One hundred thousand dollars or more commits a felony of 
106  the first degree, punishable as provided in s. 775.082, s. 
107  775.083, or s. 775.084. 
108         (c) As used in this subsection, the term “willful” means a 
109  voluntary and intentional violation of a known legal duty. 
110         (d) The department shall give written notice of the duty to 
111  collect taxes or fees to the dealer by personal service, by 
112  sending notice to the dealer’s last known address by registered 
113  mail, or by both personal service and mail. 
114         Section 2. Paragraph (d) of subsection (2) of section 
115  212.12, Florida Statutes, is amended to read: 
116         212.12 Dealer’s credit for collecting tax; penalties for 
117  noncompliance; powers of Department of Revenue in dealing with 
118  delinquents; brackets applicable to taxable transactions; 
119  records required.— 
120         (2) 
121         (d) A Any person who makes a false or fraudulent return 
122  with a willful intent to evade payment of any tax or fee imposed 
123  under this chapter is; any person who, after the department’s 
124  delivery of a written notice to the person’s last known address 
125  specifically alerting the person of the requirement to register 
126  the person’s business as a dealer, intentionally fails to 
127  register the business; and any person who, after the 
128  department’s delivery of a written notice to the person’s last 
129  known address specifically alerting the person of the 
130  requirement to collect tax on specific transactions, 
131  intentionally fails to collect such tax, shall, in addition to 
132  the other penalties provided by law, be liable for a specific 
133  penalty of 100 percent of any unreported or any uncollected tax 
134  or fee. This penalty is in addition to any other penalty 
135  provided by law. A person who makes a false or fraudulent return 
136  with a willful intent to evade payment of taxes or fees 
137  totaling: 
138         1. Less than $300: 
139         a. For a first offense, commits a misdemeanor of the second 
140  degree, punishable as provided in s. 775.082 or s. 775.083. 
141         b. For a second offense, commits a misdemeanor of the first 
142  degree, punishable as provided in s. 775.082 or s. 775.083. 
143         c. For a third or subsequent offense, commits a felony of 
144  the third degree, punishable as provided in s. 775.082, s. 
145  775.083, or s. 775.084. 
146         2. Three hundred dollars or more, but less than $20,000, 
147  commits a felony of the third degree, punishable as provided in 
148  s. 775.082, s. 775.083, or s. 775.084. 
149         3. Twenty thousand dollars or more, but less than $100,000, 
150  commits a felony of the second degree, punishable as provided in 
151  s. 775.082, s. 775.083, or s. 775.084. 
152         4. One hundred thousand dollars or more commits a felony of 
153  the first degree, punishable as provided in s. 775.082, s. 
154  775.083, or s. 775.084. and, upon conviction, for fine and 
155  punishment as provided in s. 775.082, s. 775.083, or s. 775.084. 
156  Delivery of written notice may be made by certified mail, or by 
157  the use of such other method as is documented as being necessary 
158  and reasonable under the circumstances. The civil and criminal 
159  penalties imposed herein for failure to comply with a written 
160  notice alerting the person of the requirement to register the 
161  person’s business as a dealer or to collect tax on specific 
162  transactions shall not apply if the person timely files a 
163  written challenge to such notice in accordance with procedures 
164  established by the department by rule or the notice fails to 
165  clearly advise that failure to comply with or timely challenge 
166  the notice will result in the imposition of the civil and 
167  criminal penalties imposed herein. 
168         1. If the total amount of unreported or uncollected taxes 
169  or fees is less than $300, the first offense resulting in 
170  conviction is a misdemeanor of the second degree, the second 
171  offense resulting in conviction is a misdemeanor of the first 
172  degree, and the third and all subsequent offenses resulting in 
173  conviction is a misdemeanor of the first degree, and the third 
174  and all subsequent offenses resulting in conviction are felonies 
175  of the third degree. 
176         2. If the total amount of unreported or uncollected taxes 
177  or fees is $300 or more but less than $20,000, the offense is a 
178  felony of the third degree. 
179         3. If the total amount of unreported or uncollected taxes 
180  or fees is $20,000 or more but less than $100,000, the offense 
181  is a felony of the second degree. 
182         4. If the total amount of unreported or uncollected taxes 
183  or fees is $100,000 or more, the offense is a felony of the 
184  first degree. 
185         Section 3. Subsection (3) of section 212.18, Florida 
186  Statutes, is amended to read: 
187         212.18 Administration of law; registration of dealers; 
188  rules.— 
189         (3)(a) Every person desiring to engage in or conduct 
190  business in this state as a dealer, as defined in this chapter, 
191  or to lease, rent, or let or grant licenses in living quarters 
192  or sleeping or housekeeping accommodations in hotels, apartment 
193  houses, roominghouses, or tourist or trailer camps that are 
194  subject to tax under s. 212.03, or to lease, rent, or let or 
195  grant licenses in real property, as defined in this chapter, and 
196  every person who sells or receives anything of value by way of 
197  admissions, must file with the department an application for a 
198  certificate of registration for each place of business. The 
199  application must include, showing the names of the persons who 
200  have interests in the such business and their residences, the 
201  address of the business, and such other data reasonably required 
202  by as the department may reasonably require. However, owners and 
203  operators of vending machines or newspaper rack machines are 
204  required to obtain only one certificate of registration for each 
205  county in which such machines are located. The department, by 
206  rule, may authorize a dealer that uses independent sellers to 
207  sell its merchandise to remit tax on the retail sales price 
208  charged to the ultimate consumer in lieu of having the 
209  independent seller register as a dealer and remit the tax. The 
210  department may appoint the county tax collector as the 
211  department’s agent to accept applications for registrations. The 
212  application must be made to the department before the person, 
213  firm, copartnership, or corporation may engage in such business, 
214  and it must be accompanied by a registration fee of $5. However, 
215  a registration fee is not required to accompany an application 
216  to engage in or conduct business to make mail order sales. The 
217  department may waive the registration fee for applications 
218  submitted through the department’s Internet registration 
219  process. 
220         (b) The department, upon receipt of such application, shall 
221  will grant to the applicant a separate certificate of 
222  registration for each place of business, which certificate may 
223  be canceled by the department or its designated assistants for 
224  any failure by the certificateholder to comply with any of the 
225  provisions of this chapter. The certificate is not assignable 
226  and is valid only for the person, firm, copartnership, or 
227  corporation to which issued. The certificate must be placed in a 
228  conspicuous place in the business or businesses for which it is 
229  issued and must be displayed at all times. Except as provided in 
230  this subsection, a no person may not shall engage in business as 
231  a dealer or in leasing, renting, or letting of or granting 
232  licenses in living quarters or sleeping or housekeeping 
233  accommodations in hotels, apartment houses, roominghouses, 
234  tourist or trailer camps, or real property or as hereinbefore 
235  defined, nor shall any person sell or receive anything of value 
236  by way of admissions, without a valid first having obtained such 
237  a certificate. A or after such certificate has been canceled; no 
238  person may not shall receive a any license from any authority 
239  within the state to engage in any such business without a valid 
240  first having obtained such a certificate or after such 
241  certificate has been canceled. A person may not engage The 
242  engaging in the business of selling or leasing tangible personal 
243  property or services or as a dealer; engage, as defined in this 
244  chapter, or the engaging in leasing, renting, or letting of or 
245  granting licenses in living quarters or sleeping or housekeeping 
246  accommodations in hotels, apartment houses, roominghouses, or 
247  tourist or trailer camps that are taxable under this chapter, or 
248  real property;, or engage the engaging in the business of 
249  selling or receiving anything of value by way of admissions, 
250  without a valid such certificate first being obtained or after 
251  such certificate has been canceled by the department, is 
252  prohibited. 
253         (c)1. A The failure or refusal of any person who engages in 
254  acts requiring a certificate of registration under this 
255  subsection and who fails or refuses to register, commits, firm, 
256  copartnership, or corporation to so qualify when required 
257  hereunder is a misdemeanor of the first degree, punishable as 
258  provided in s. 775.082 or s. 775.083. Such acts are, or subject 
259  to injunctive proceedings as provided by law. A person who 
260  engages in acts requiring a certificate of registration and who 
261  fails or refuses to register is also subject Such failure or 
262  refusal also subjects the offender to a $100 initial 
263  registration fee in lieu of the $5 registration fee required by 
264  authorized in paragraph (a). However, the department may waive 
265  the increase in the registration fee if it finds is determined 
266  by the department that the failure to register was due to 
267  reasonable cause and not to willful negligence, willful neglect, 
268  or fraud. 
269         2. A person who willfully fails to register after the 
270  department provides notice of the duty to register as a dealer 
271  commits a felony of the third degree, punishable as provided in 
272  s. 775.082, s. 775.083, or s. 775.084. 
273         a. As used in this subsection, the term “willful” means a 
274  voluntary and intentional violation of a known legal duty. 
275         b. The department shall give written notice of the duty to 
276  register to the person by personal service, by sending notice by 
277  registered mail to the person’s last known address, or by both 
278  personal service and mail. 
279         (d)(c) In addition to the certificate of registration, the 
280  department shall provide to each newly registered dealer an 
281  initial resale certificate that will be valid for the remainder 
282  of the period of issuance. The department shall provide each 
283  active dealer with an annual resale certificate. For purposes of 
284  this section, “active dealer” means a person who is currently 
285  registered with the department and who is required to file at 
286  least once during each applicable reporting period. 
287         (e)(d) The department may revoke a any dealer’s certificate 
288  of registration if when the dealer fails to comply with this 
289  chapter. Prior to revocation of a dealer’s certificate of 
290  registration, the department must schedule an informal 
291  conference at which the dealer may present evidence regarding 
292  the department’s intended revocation or enter into a compliance 
293  agreement with the department. The department must notify the 
294  dealer of its intended action and the time, place, and date of 
295  the scheduled informal conference by written notification sent 
296  by United States mail to the dealer’s last known address of 
297  record furnished by the dealer on a form prescribed by the 
298  department. The dealer is required to attend the informal 
299  conference and present evidence refuting the department’s 
300  intended revocation or enter into a compliance agreement with 
301  the department which resolves the dealer’s failure to comply 
302  with this chapter. The department shall issue an administrative 
303  complaint under s. 120.60 if the dealer fails to attend the 
304  department’s informal conference, fails to enter into a 
305  compliance agreement with the department resolving the dealer’s 
306  noncompliance with this chapter, or fails to comply with the 
307  executed compliance agreement. 
308         (f)(e) As used in this paragraph, the term “exhibitor” 
309  means a person who enters into an agreement authorizing the 
310  display of tangible personal property or services at a 
311  convention or a trade show. The following provisions apply to 
312  the registration of exhibitors as dealers under this chapter: 
313         1. An exhibitor whose agreement prohibits the sale of 
314  tangible personal property or services subject to the tax 
315  imposed in this chapter is not required to register as a dealer. 
316         2. An exhibitor whose agreement provides for the sale at 
317  wholesale only of tangible personal property or services subject 
318  to the tax imposed in this chapter must obtain a resale 
319  certificate from the purchasing dealer but is not required to 
320  register as a dealer. 
321         3. An exhibitor whose agreement authorizes the retail sale 
322  of tangible personal property or services subject to the tax 
323  imposed in this chapter must register as a dealer and collect 
324  the tax imposed under this chapter on such sales. 
325         4. Any exhibitor who makes a mail order sale pursuant to s. 
326  212.0596 must register as a dealer. 
327 
328  Any person who conducts a convention or a trade show must make 
329  their exhibitor’s agreements available to the department for 
330  inspection and copying. 
331         Section 4. This act shall take effect upon becoming a law.